The Estate of Mauricio Jaquez v. The City of New York et al

Filing 219

OPINION & ORDER ON MOTIONS IN LIMINE AND PRETRIAL MATTERS #2: For the foregoing reasons, defendants' first, second, third, fourth, sixth, eighth, ninth, tenth, eleventh, thirteenth, fifteenth, and sixteenth motions in limine are GRANTED; defen dants' seventh and fourteenth motions in limine are GRANTED IN PART; defendants' twelfth motion in limine is DENIED; and plaintiffs' first, second, and third motions in limine are GRANTED. As to the issues raised in defendants' fourth and ninth motions in limine, plaintiffs may seek reconsideration of these rulings as explained in this decision. (As further set forth in this Order.) (Signed by Judge Katherine B. Forrest on 3/17/2016) (kgo) Modified on 3/17/2016 (kgo).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
THE ESTATE OF MAURICIO JAQUEZ, :
by The Public Administrator of Bronx
:
County as administrator of the Good,
:
Chattels and Credit of the deceased
:
Mauricio Jaquez, and ANA MARTINEZ, :
:
Plaintiffs,
:
:
-v:
:
SERGEANT WILLIAM FLORES, Shield :
No. 1023,
:
:
Defendant.
:
------------------------------------------------------------ X
KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: March 17, 2016

10 Civ. 2881 (KBF)
OPINION & ORDER
ON MOTIONS IN
LIMINE AND
PRETRIAL MATTERS
#2

Trial in this matter will begin on Monday, April 4, 2016. This is the second of
two opinions released by the Court simultaneously addressing various pretrial
matters. The Court assumes the reader’s familiarity with the facts of this matter,
which have been documented in earlier decisions. (See, e.g., ECF Nos. 84, 128, 157,
169, and 186.)
This opinion addresses a number of motions in limine. (ECF Nos. 204, 207.)
Specifically, the Court here addresses defendants’ motions in limine included in
their February 26, 2016 memorandum of law. (Mem. of Law in Support of Defs.’
Mots. in Limine (“Defs.’ Mem.”), ECF No. 206.) The Court also addresses plaintiffs’
motions in limine included in their own February 26, 2016 submission. (Pls.’s
Second Mots. in Limine (“Pls.’ Mem.”), ECF No. 207.) The Court has received
oppositions from both parties. (Resp. to Defs.’ Mots. in Limine (“Pls.’ Resp.”), ECF

No. 216; Mem. of Law in Opp. to Pls.’ Second Mot. in Limine (“Defs.’ Resp.”), ECF
No. 217.) The Court’s rulings are set forth below.
I.

LEGAL STANDARD
The purpose of a motion in limine is to allow the trial court to rule on the

admissibility and relevance of certain anticipated evidence before that evidence is
actually offered at trial. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984);
Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). The trial court should only
exclude the evidence in question “when [it] is clearly inadmissible on all potential
grounds.” United States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001)
(citations omitted).
The Federal Rules of Evidence govern the admissibility of evidence at trial.
Under Rule 402, evidence must be relevant to be admissible. Fed. R. Evid. 402.
Evidence is relevant if it has a tendency to make a fact that is of consequence in
determining the action more or less probable than it would be without the evidence.
Fed. R. Evid. 401. In addition to relevancy, admissibility turns on the probative
value and prejudice of the evidence in question. Under Rule 403, relevant evidence
may be excluded “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. The Second Circuit has instructed that the “[d]istrict courts have
broad discretion to balance probative value against possible prejudice” under Rule
403. United States v. Bermudez, 529 F.3d 158, 161 (2d Cir. 2008) (citing United
States v. LaFlam, 369 F.3d 153, 155 (2d Cir. 2004)).
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Motions in limine are necessarily pretrial motions. As a result, this Court
does not have the benefit of evidence that may come in and connections that may be
made at trial. A lot can happen during a trial. It is possible that as the trial record
develops, it would be in the interests of justice to revisit specific prior rulings.
Accordingly, should the record develop in manner not currently anticipated, or other
matters make it clear that the basis for this Court’s ruling on a particular matter
has been undermined, a party may make an appropriate application.
II.

DISCUSSION
As indicated above this decision addresses most of defendants’ sixteen

motions in limine and most of plaintiffs’ four motions in limine. The Court
addresses each of these requests in turn.
A.

Defendants’ MIL # 1: Referring to Defense Counsel as “City Attorneys”

Defendants’ first motion seeks to preclude plaintiffs from informing the jury
that Sgt. Flores’s attorneys are “City attorneys,” arguing that allowing plaintiffs to
do so may lead the jury to conclude that Sgt. Flores will be indemnified by the City,
which may prejudice the jury’s assessment of liability or damages. (Defs.’ Mem. at
4-5.) While plaintiffs agree not to refer to defense counsel as “City attorneys,” they
argue that “no effort should be made to hide the fact that they work for the City of
New York and that the name of their office is the New York City Law Department
Office of the Corporation Counsel.” (Pls.’ Resp. at 2-3.) The Court concludes that
any references to defense counsel’s employment by the City shall be precluded.
Defendants’ request is a standard one in these types of actions. Defendants’
concern is that connecting counsel to the City suggests involvement by the City;
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this, in turn, could cause the jury to view liability less critically, and suggest the
presence of a deep pocket. The Court agrees that this is a valid concern. While the
City has been involved in this litigation, that fact is irrelevant to the determination
of liability and damages, which should be based solely on the facts and the law.
The Court is aware that at least one other court in this district has attempted
to cure this issue by referring to defense counsel as “Corporation Counsel.”
Williams v. McCarthy, 05 Civ. 10230 (SAS), 2007 U.S. Dist. LEXIS 79151, at *24-25
(S.D.N.Y. Oct. 25, 2007). This Court declines to follow Williams here. A reference
to “Corporation Counsel” may itself be misunderstood by jurors as suggesting some
association with a corporation or the City, leading to the same associations with a
deep pocket. The Court instead will “preclude any reference to defense counsel as
employees of the City of New York or ‘City attorneys.’” Davis v. City of New York,
296 F.R.D. 127, 130 (E.D.N.Y. 2013) (Weinstein, J.).
Accordingly, defendant’s first motion in limine is GRANTED. The parties
and the Court shall refer to counsel for Sgt. Flores as “defendant Flores’s
lawyer/counsel/attorney.”
B.

Defendants’ MIL # 2: Evidence of Indemnification by the City

In a similar vein to their first motion, defendants’ second motion seeks to
preclude plaintiffs from presenting any evidence or argument to the jury regarding
the City’s potential obligation to indemnify Sgt. Flores under New York General
Municipal Law § 50-k. (Defs.’ Mem. at 5-6.) They argue that such evidence or
argument is irrelevant to any fact in issue and would seriously prejudice defendants

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because the jury’s awareness of a defendant with “deep pockets” could affect its
assessment of liability or damages. Seeking to assert a probative purpose for
offering the evidence, plaintiffs counter that the City’s potential indemnification of
Sgt. Flores and the former defendant officers is relevant as impeachment because it
gives the individual officers a motivation to lie. (Pls.’ Resp. at 3-4.) They argue that
they should be entitled to probe into the officer witnesses’ potential biases. The
Court concludes that plaintiffs should be precluded from presenting any evidence or
argument of the City’s potential indemnification.
Although defendants have not cited binding precedent from the Second
Circuit on this issue, other circuit courts and courts within this district routinely
“exclude evidence of indemnification out of a fear that it will encourage a jury to
inflate its damages award because it knows the government—not the individual
defendants—is footing the bill.” Lawson v. Trowbridge, 153 F.3d 368, 379 (7th Cir.
1998); see also Larez v. Holcomb, 16 F.3d 1513, 1518 (9th Cir. 1994); Jean-Laurent
v. Wilkinson, No. 05 Civ. 0583 (VM), 2009 WL 666832, at *3 (S.D.N.Y. Mar. 13,
2009); Williams, 2007 U.S. Dist. LEXIS 79151, at *24-25. Evidence that a
defendant has “deep pockets” is entirely irrelevant to the issue of damages—
evidence of indemnification clearly may not be admitted for that purpose.
As to plaintiffs’ argument that evidence of indemnification is relevant
because it is probative of the officers’ bias, the Court concludes that such evidence
must be excluded under Rule 403. First, while evidence of indemnification may
generally be admitted to prove a witness’s bias, see United States v. Jasper, No. 00

5

CR. 0825 (PKL), 2003 WL 740878, at *3 (S.D.N.Y. Mar. 3, 2003); cf. Fed. R. Evid.
411, it is not clear that the fact of indemnification shows bias in the circumstances
presented here. An equally valid inference is that the officers’ indemnification by
the City actually frees them to be forthright and truthful because they need not be
concerned about having to pay out-of-pocket for any damages determination.
Second, just because the issue of indemnification raises a possible area of bias does
not mean that plaintiffs are automatically entitled to probe into that area; the
evidence is still subject to Rule 403’s balancing test. United States v. Harvey, 547
F.2d 720, 723 (2d Cir. 1976). Given the incremental benefit of evidence of
indemnification for the purpose of bias in this case, and the significant likelihood
that the jury’s liability and damages determination would be influenced even if the
Court were to issue a limiting instruction, the Court concludes that its admission is
substantially outweighed by the risk of unfair prejudice to defendants under Rule
403.
Accordingly, defendants’ second motion in limine is GRANTED.
C.

Defendants’ MIL # 3: Suggestion of Dollar Amount to the Jury

Defendants’ third motion seek to preclude plaintiffs from suggesting a
specific dollar amount of damages to the jury during their opening statement, the
testimony of any witness, and summation. (Defs.’ Mem. at 6-7.) Plaintiffs argue
that it is premature to rule on this issue at this stage and that it would not be
prejudicial error for the Court to allow counsel to suggest a particular damages
amount to the jury. (Pls.’ Resp. at 4-5.) This motion is not premature, as it may

6

impact opening statements. The Court concludes that plaintiffs may not offer a
specific dollar amount of damages to the jury.
While the Second Circuit has not entirely prohibited trial attorneys from
suggesting a particular damages figure to the jury, it has repeatedly expressed its
concern about the practice. Ramirez v. New York City Off-Track Betting Corp., 112
F.3d 38, 40 (2d Cir. 1997) (citing Mileski v. Long Island R. R. Co., 499 F.2d 1169,
1172-74 (2d Cir. 1974)); Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003,
1016 (2d Cir. 1995), as amended (Dec. 22, 1995), cert. granted, judgment vacated
sub nom. Consorti v. Owens-Corning Fiberglas Corp., 518 U.S. 1031 (1996). This
Court is persuaded by the reasoning in Consorti that the better practice is to
preclude counsel from suggesting a dollar amount to the jury. Counsel’s choice of a
dollar amount has the potential to unduly tether the jury to a number that lacks
any evidentiary basis. The Court is particularly concerned about that risk in the
circumstances presented here given plaintiffs’ lack of disclosure of their damages
calculations in discovery and the Court’s in limine ruling below, precluding
plaintiffs’ from offering such information into evidence.
Accordingly, defendants’ third motion in limine is GRANTED.
D.

Defendants’ MIL # 4: Sgt. Flores’s Disciplinary History

Defendants’ fourth motion seeks to preclude plaintiffs from inquiring about
any of Sgt. Flores’s disciplinary history on the ground that such questioning violates
Federal Rule of Evidence 404(b). (Defs.’ Mem. at 7-8.) Plaintiffs counter only by
representing that they have “uncovered prior bad acts by [Sgt.] Flores while on duty
that are highly probative of disputed conduct in this case,” but state that they
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“prefer not to disclose our impeachment evidence . . . at this time.” (Pls.’ Resp. at 6.)
Because plaintiffs have failed to establish that Sgt. Flores’s prior bad acts are
sufficiently similar to the conduct at issue in this case, the Court precludes evidence
of his disciplinary history at this time.
Rule 404(b) provides:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident. . . .
Fed. R. Evid. 404(b). The decision whether to admit evidence under Rule 404(b)
turns on “whether the danger of undue prejudice outweighs the probative value of
the evidence in view of the availability of other means of proof and other factors
appropriate for making decisions of this kind under Rule 403.” Huddleston v.
United States, 485 U.S. 681, 688 (1988). The Second Circuit has stated that for
evidence of prior complaints against a police officer to be admissible under Rule
404(b) for the purpose of establishing a pattern of conduct, “the extrinsic acts must
share ‘unusual characteristics’ with the act charged or represent a ‘unique scheme.’”
Berkovich v. Hicks, 922 F.2d 1018, 1022 (2d Cir. 1991) (quoting United States v.
Benedetto, 571 F.2d 1246, 1249 (2d Cir. 1978)).
In order to admit evidence of specific prior bad acts against Sgt. Flores, it is
plaintiffs’ burden to show that those prior bad acts share particular, unique
characteristics with the conduct that plaintiffs allege occurred here. Not even
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trying to meet this burden, plaintiffs have elected not to disclose their potential
Rule 404(b) evidence until and unless Sgt. Flores attempts at trial to claim that Mr.
Jaquez posed some sort of threat to him or anyone else at the time of the last shot.
(Pls.’ Resp. at 6.) This is hardly a concession, as this is the very issue to be tried.
Thus, the Court is left with an expressed intent to use a piece of evidence as to
which there has been no proffer. In light of plaintiffs’ insufficient proffer, the Court
grants defendants’ motion at this stage. The Court will, however, allow plaintiffs
an additional opportunity to make a proffer pre-trial as to the similarities between
the conduct at issue here and the evidence they may seek to admit of Sgt. Flores’s
disciplinary history. If they do not make a proffer pre-trial, it will not be allowed
later. Plaintiffs, however, should be aware when providing their proffer that the
Court does not intend to admit the prior bad acts unless the similarities between
the acts are compelling.
Accordingly, defendants’ fourth motion in limine is GRANTED.
E.

Defendants’ MIL # 5: The Autopsy Photos

Defendants’ fifth motion in limine seeks to preclude the admission and use of
photos taken during Mr. Jaquez’s autopsy. (Defs.’ Mem. at 9-12.) The Court
addresses this motion in a forthcoming separate decision.
F.

Defendants’ MIL # 6: Exacerbation Arguments

Defendants’ sixth motion in limine seeks to preclude any argument or
evidence that the officers created the need for the use of force or exacerbated Mr.
Jaquez’s emotional state. (Defs.’ Mem. at 12-14.) Plaintiffs have proffered that they

9

do not intend to make any such argument. (Pls.’ Resp. at 10.) Accordingly,
defendants’ sixth motion in limine is GRANTED.
G.

Defendants’ MIL # 7: Arguments About Lesser Force

Defendants’ seventh motion seeks to preclude argument or evidence that Sgt.
Flores should have responded differently or used lesser force. (Defs.’ Mem. at 1517.) Defendants argue that any evaluation of less intrusive alternatives will
obscure the question of whether the lethal force actually used was reasonable.
Plaintiffs oppose this motion and argue that the availability of lesser alternative
force is probative of whether “any threat of death or bodily injury was … in fact
imminent when Sgt. Flores took his last shot.” (Pls.’ Resp. at 11.)
The Court understands plaintiffs to agree that the fact that Sgt. Flores may
have had the opportunity to use lesser force is not directly relevant to a
determination of whether the lethal force he did use was excessive. This position is
correct. Force is excessive in violation of the Fourth Amendment not if it is “more
force than necessary,” but instead if it is “objectively unreasonable.” See, e.g.,
Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). When the force in question is
lethal, this inquiry asks whether “the officer has probable cause to believe that the
suspect poses a significant threat of death or serious physical injury to the officer or
others.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 36 (2d Cir. 2003).
The question ultimately relates to whether a particular type of force (including
method and application) was appropriate at the time of the incident. This
determination does not include an evaluation of the choices, or lack thereof, the

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officer has at his disposal at the relevant moment. Indeed, courts have consistently
held that “the appropriate inquiry is whether the officers acted reasonably, not
whether they had less intrusive alternatives available to them.” Scott v. Henrich,
39 F.3d 912, 915 (9th Cir. 1994); see also, e.g., Bancroft v. City of Mt. Vernon, 672 F.
Supp. 2d 391, 406 (S.D.N.Y. 2009) (if force used was not unreasonable, “it does not
matter that some less intrusive alternative would have done the job”). It is
certainly the case that while other means might have been available, that fact does
not mean that the force actually used was inappropriate. There can be a wide
spectrum of appropriate choices.
In addition to relevance issues, there is a Rule 403 concern. To the extent
plaintiffs seek to inquire into the availability of less intrusive alternatives as an
indirect reflection of the threat Mr. Jaquez actually posed at the time Sgt. Flores
took his last shot, the danger that such evidence and argument would be used for
impermissible purposes substantially outweighs its probative value. Fed. R. Evid.
403. As discussed above, in excessive force cases the inquiry must be carefully
focused on the objective reasonableness of what did happen, and not on what might
have happened “with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S.
386, 396 (1989). Without careful limits, the jury is more likely to (improperly)
interpret evidence that the range of responses included alternatives to lethal force
as directly relevant to whether lethal force was itself unreasonable than (arguably
properly) interpret such evidence as directly relevant only to the threat Mr. Jaquez
posed.

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The Court cannot, in the context of a motion in limine which necessarily
precedes trial, identify all questions which might run afoul of this determination.
However, questions such as “Did you consider doing X?” or “Why didn’t you do Y?”
are precluded.
Therefore, defendants’ seventh motion in limine is GRANTED as stated.
H.

Defendants’ MIL # 8: Mr. Jaquez’s Lost Income or Future Expenses

Plaintiffs’ proposed verdict form calls for the jury to award specific damages
for medical expenses, dental expenses, custodial care, rehabilitation services,
nursing care, loss of income, and funeral expenses incurred in connection with Mr.
Jaquez’s burial. (JPTO, Ex. D.) Plaintiffs’ verdict form further asks the jury to set
the amount of monetary loss from the time of death to the date of verdict and the
amount of future monetary loss sustained by his wife and their three children, and
the value of the nurture, intellectual, moral and physical training that was lost by
Mr. Jaquez’s three children. (Id.) Plaintiffs’ proposed jury instructions relating to
damages similarly informs the jury that plaintiffs are entitled to recover, inter alia,
the “reasonable expenses that were paid or incurred by Mauricio Jaquez’s estate for
medical aid, nursing and other care required to treat Mauricio Jaquez’s injuries,
and such amount for loss of earnings as you find Mauricio Jaquez would have
earned between the date of injury and the date of death had he not been injured.”
(JPTO, Ex. C at 56.) Elsewhere, the proposed instructions also state that the jury
“will make a separate award for those reasonable expenses for Mauricio Jaquez’s
funeral and burial lot.” (Id.) These documents were the first instance in this

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litigation that plaintiffs indicated that they would seek these categories of damages
at trial.
Defendants’ eighth motion seeks to preclude plaintiffs from introducing
evidence or testimony concerning these various items of damages because plaintiffs
never disclosed the amount, basis or computation for any such claims for damages
during discovery, as required by Rule 26. (Defs.’ Mem. at 17-21.) Before we get to
this specific issue, the Court notes that as to all of these itemized categories, if the
final shot did not proximately cause death, they may well not be recoverable as
damages for that reason alone. The Court is issuing a separate decision on
proximate cause issues and damages related to Mr. Jaquez’s death; the parties
should refer to that decision for additional guidance. Thus, the Rule 26 issue raised
by defendants in motion in limine number eight is only relevant to the extent
plaintiffs are able to show that wound A proximately caused death. If there is no
such showing, the damages flowing from the fact of Mr. Jaquez’s death are excluded
as not cognizable. Not knowing the outcome of the proximate cause issue at this
time, the Court turns to the disclosure issue.
Plaintiffs concede that they never provided any Rule 26 disclosures in
relation to individual categories of damages or lost income. They argue that their
omissions were “plainly justifiable” because at least some of the facts relating to lost
income were revealed in Ms. Martinez’s 50-H hearing, and by virtue of plaintiffs’
completion of authorizations for the City to obtain Mr. Jaquez’s tax returns, which
constitute the only documentary evidence that plaintiffs seek to admit regarding

13

lost income. (Pls.’ Resp. at 11-12.) As to their various claims for damages for
specific expenditures, plaintiffs respond only by baldly asserting that they “have not
withheld any information from Defendants and have timely cooperated with
Defendants’ requests for authorizations and information.” (Pls.’ Resp. at 12.)
Plaintiffs thus do not dispute that they did not provide any Rule 26 disclosures
related to their computations of these categories of damages. As explained below,
because plaintiffs failed to comply with their discovery obligations and the 50-H
hearing is plainly inadequate and insufficient, and because defendants would be
prejudiced by inclusion of this evidence, the Court precludes plaintiffs’ introduction
of evidence relating to the above listed expenses and lost income.
Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(iii), plaintiffs were
obligated, as part of their initial disclosures (or later supplementation of such
disclosures), to provide defendants with “a computation of each category of
damages” and “the documents or other evidentiary material . . . on which each
computation is based.” Fed. R. Civ. P. 26(a)(1)(A)(iii). “Where a party without
substantial justification fails to disclose information required by Rule 26(a), she is
not, unless such failure is harmless, permitted to use as evidence at trial the
information not disclosed.” Tse v. UBS Fin. Servs., Inc., 568 F. Supp. 2d 274, 30607 (S.D.N.Y. 2008) (quotation marks omitted); see Fed. R. Civ. P. 37(c); Design
Strategy, Inc. v. Davis, 469 F.3d 284, 297 (2d Cir. 2006) (stating that preclusion is
not mandatory, as district court may choose an alternative sanction). Numerous
courts have precluded parties from introducing evidence relating to particular

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categories of damages where those parties failed to comply with their Rule 26
disclosure obligations. E.g., Design Strategy, 469 F.3d at 296 (lost profits);
Thompson v. Jamaica Hosp. Med. Ctr., No. 13 Civ. 1896 (RWS), 2015 WL 3824254,
at *4 (S.D.N.Y. June 19, 2015) (precluding evidence of damages not yet produced in
discovery); Agence France Presse v. Morel, 293 F.R.D. 682, 683 (S.D.N.Y. 2013)
(precluding plaintiff from arguing he was entitled to statutory damages award
under DMCA for each of 527 purported violations); Public Adm’r of Queens Cnty. ex
rel. Estate and Beneficiaries of Guzman v. City of New York, No. 06 Civ. 7099, 2009
WL 498976, at *12 (S.D.N.Y. Feb. 24, 2009) (dismissing a wrongful death claim
because plaintiff “failed to provide furnish any evidence establishing pecuniary loss
as a result of [decedent’s] death”); 24/7 Records, Inc. v. Sony Music Entm’t, Inc., 566
F. Supp. 2d 305, 318 (S.D.N.Y. 2008) (preclusion of evidence of loss of incomeproducing asset theory).
In determining whether to exclude evidence for failure to comply with
discovery obligations, the Court must look to the following factors: “(1) the party’s
explanation for the failure to comply with the disclosure requirement; (2) the
importance of the testimony of the precluded witnesses; (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) (quotation marks omitted). Evidence may be precluded pursuant to Rule
37(c) without the need for a showing of bad faith. Design Strategy, 469 F.3d at 296.

15

Plaintiffs refer to their failure to disclose as “justifiable” in light of the 50-H
testimony. That no “justification” at all. If the Court were to accept 50-H testimony
as sufficient justification for failure to fulfill Rule 26 obligations, the Court would
essentially be creating a broad exception applicable in routine cases. This is not the
type of justification the rule anticipates. See Kunstler v. City of New York, 242
F.R.D. 261, 264-65 (S.D.N.Y. 2007) (“Substantial justification means ‘justification to
a degree that could satisfy a reasonable person that parties could differ as to
whether the party was required to comply with the disclosure request.’” (quoting
Am. Stock Exch., LLC v. Mopex, Inc., 215 F.R.D. 87, 93 (S.D.N.Y. 2002))). In any
event, it is clear that the 50-H testimony does not come close to providing notice of
the array of types and amounts of damages sought now. Rule 26 is designed to
provide defendants with fair notice of the damages they may be facing. 50-H
testimony does not have similar goals and, unsurprisingly, falls far short of
accomplishing the goals of Rule 26. The fact that the defendants may have been
aware of facts which might be used in some manner to support plaintiffs’ damages
for lost income based on Ms. Martinez’s 50-H hearing, or by receiving authorization
forms to obtain Mr. Jaquez’s W-2 form, does not take the place of plaintiffs’
discovery obligations. See, e.g., Lebada v. New York City Dep’t of Educ., No. 14 Civ.
758 (LAK) (GWG), 2016 WL 626059, at *5 (S.D.N.Y. Feb. 8, 2016) (“Rule 26(a) thus
fulfills a critical function: transmitting formal notice from the disclosing party to the
opposing party that the opposing party should be prepared for the disclosing party
to use the information provided by the witness.”). Plaintiffs cite no authority for the

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proposition that defendants’ possession of Mr. Jaquez’s tax forms excuses their
obligation to disclose a computation of damages for lost income. As to plaintiffs’
other claims for damages for various categories of expenditures, plaintiffs do not
even attempt to claim that defendants were provided with any information during
discovery that could allow them to fairly meet this evidence, nor do they give any
explanation as to why this evidence was not turned over during discovery.
None of the other Patterson factors favor plaintiffs. First, defendants would
clearly be highly prejudiced by introduction of this evidence. As to lost income,
defendants’ receipt of Mr. Jaquez’s W-2 form and awareness that he owned and
operated a restaurant was insufficient, in the absence of formal Rule 26 disclosures,
to give them an opportunity to fairly meet plaintiffs’ evidence and arguments on
this issue. As to all of the other categories of damages at issue, defendants had zero
notice of plaintiffs’ damages claims or the basis for any computations, and thus had
no fair opportunity to appropriately respond by taking their own discovery on these
issues. Spotnana, Inc. v. Am. Talent Agency, Inc., No. 09 Civ. 3698 (LAP), 2010 WL
3341837, at *2 (S.D.N.Y. Aug. 17, 2010). Given the late stage of the proceedings,
the Court will not consider the possibility of a continuance in this protracted case,
and plaintiffs have not asked for one. Finally, while the determination of damages
is an important aspect of this trial, plaintiffs were clearly aware that these issues
would be hotly contested and central to the case, and merely sought to sandbag the
defendants at this late hour. Plaintiffs proceeded at their peril when they decided

17

not to furnish the required information to defendants during discovery. They now
must live with that tactical choice.
Accordingly, defendants’ eight motion in limine is GRANTED.
I.

Defendants’ MIL # 9: Previously Recorded Statements

Defendants’ ninth motion seeks to preclude plaintiffs from offering the GO-15
interviews of police officers who will be present to testify at trial. (Defs.’ Mem. at
21; see JPTO, Ex. A, PX30-41, ECF No. 210.) Plaintiffs counter that, as to all
individuals except for Sgt. Flores, they intend to offer this evidence solely for
impeachment purposes pursuant to Federal Rule of Evidence 608(b). (Pls.’ Resp. at
12.) As to Sgt. Flores’s recorded statements, plaintiffs assert that these are
admissible as non-hearsay admissions of a party opponent pursuant to Federal Rule
of Evidence 801(d)(2). (Pls.’ Resp. at 12-13.) The heading in plaintiffs’
memorandum of law indicates that they intend to lay a proper foundation for the
prior recorded statements at trial. (See Pls.’ Resp. at 12.) At this point, however,
they have only provided blanket assertions as to the general bases upon which they
seek to admit the recorded statements at issue.
As to the recorded statements of officers other than Sgt. Flores, plaintiffs
have failed to meet their burden to show that these statements are admissible
under Rule 608(b). Rule 608(b) bears on evidence showing a witness’s character for
truthfulness or untruthfulness. See Fed. R. Evid. 608(b). Rule 608(b) provides that,
“[e]xcept for a criminal conviction under Rule 609, extrinsic evidence is not
admissible to prove specific instances of a witness’s conduct in order to attack or

18

support the witness’s character for truthfulness.” Id. Rule 608(b) further states,
however, that “the court may, on cross-examination, allow [specific instances of a
witness’s conduct] to be inquired into if they are probative of the character for
truthfulness or untruthfulness.” Id.
First, it is worth observing that Rule 608(b) bars the admission of extrinsic
evidence, rather than serves as a rule of affirmative admissibility of statements
such as those at issue here. United States v. Ramirez, 609 F.3d 495, 499 (2d Cir.
2010). It appears that plaintiffs therefore seek to admit the prior recorded
statements pursuant to an exception to Rule 608(b), and not pursuant to Rule
608(b) itself. Thus far, plaintiffs have not identified any such exception upon which
they seek to rely. Second, even if plaintiffs had identified such an exception, they
have failed to specifically identify any particular statements in the recordings
relating to any of the officers’ characters for truthfulness, instead only making a
blanket assertion of the recordings’ admissibility. Plaintiffs have therefore not met
their burden, at this stage, of showing that the recordings are admissible. The
Court therefore precludes these prior recorded statements at this time, although
plaintiffs may renew their application to admit particular statements in the
recordings that they contend are admissible.
The Court notes that if these statements are offered as impeachment
evidence, it does not necessarily follow that they will be admitted. The Federal
Rules of Evidence distinguish between evidence used to impeach and substantive
evidence. The rules for substantive evidence are not eradicated by the invocation of

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the more permissive standards applied to some impeachment evidence. There is
case law on this point with which the Court assumes the parties will be familiar for
trial. The Court will faithfully follow that law.
Plaintiffs assert that Sgt. Flores’s recorded statements are admissible under
Rule 801(d)(2), which provides that a statement offered against an opposing party
that was made by that party in an individual or representative capacity, or a
statement that the party manifested that it adopted or believed to be true, is not
hearsay. Fed. R. Evid. 801(d)(2). Again, plaintiffs have made only a blanket
assertion of the recordings’ admissibility, without identifying which portions they
contend are admissible under this hearsay exclusion. A review of the relevant
recording—which is more than 22 minutes long—demonstrates that it includes
questions and statements by individuals other than Sgt. Flores, as well as
statements by Sgt. Flores that do not necessarily constitute “admissions” of fact
under Rule 801(d)(2). (See PX 40.) As plaintiffs have not identified which
statements they assert constitute opposing party admissions that fall within the
ambit of Rule 801(d)(2), and make only a blanket assertion that the recording is
admissible, the Court precludes the recorded statements of Sgt. Flores at this time.
As with the other recordings, however, plaintiffs may renew their application to
admit particular statements in the recordings that they contend are admissible
pursuant to Rule 801(d)(2).
Accordingly, defendants’ ninth motion in limine is GRANTED. Upon a
showing that any specific portions of the recorded statements at issue are

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admissible under Rules 608(b) or 801(d)(2) the Court may revisit the admissibility
of this material.
J.

Defendants’ MIL #10: Foam Sculpture

Defendants’ tenth motion argues that Thomas Beattie should be precluded as
an expert and a life-sized model of Mr. Jaquez should not be available as
demonstrative evidence. (Defs.’ Mem. at 22-25.) Plaintiff argues that Mr. Beattie
will testify as the one who created the sculpture – but not as an expert. They
further argue that the sculpture should be made available to the jury because “[i]t is
not expert opinion, but fact drawn directly from the photographs and measurements
contained in the autopsy report.” (Pls.’ Resp. at 14.)
Plaintiffs’ approach to this evidence tries to have it both ways,
simultaneously denying that Mr. Beattie is serving as an expert witness (and
thereby circumventing the failure to make the disclosure required of experts) and
proposing a use of this proposed evidence that would only be appropriate as a
demonstrative aid to help explain an expert’s testimony. This proposed testimony
and evidence is not analogous to a summary of voluminous data prepared in a rote,
non-discretionary way by a non-expert. Fed. R. Evid. 1006. In such instances, a
paralegal might (for example) create a chart of phone calls to or from a particular
number, drown from far more voluminous data. In such a situation, there is
typically a 1:1 correlation between the underlying data and the chart. There is little
to no discretion applied. Here, that is not the case. Instead, the application of the
“facts” drawn from the autopsy records to the life-sized model of Mr. Jaquez

21

required interpretation, and in fact defendants have called that interpretation into
question in their motion in limine. For example, the parties present different views
as to the position of the right arm or the vector of certain bullet tracks, potentially
important facts. These disagreements demonstrate that mapping the bullet wounds
onto the model was not a straightforward mechanical process, but instead required
the application of certain expertise. Even without determining which party has the
better argument about, inter alia, the placement of the model’s right arm or the
vector of bullet track B, the fact of these disputes indicates the need for an aid such
as this one to serve as a demonstrative to a properly qualified expert. It would have
been more appropriate for a qualified medical expert to have interpreted the
autopsy data and, based on his/her expertise, worked with Mr. Beattie to create the
sculpture. Plaintiffs made a tactical decision not to pursue that route.
Even where expert witnesses create the demonstrative simulations, models,
or mock-ups they propose to use to help illustrate their testimony, courts must
nonetheless carefully examine such materials to insure their reliability and
probative value. See, e.g., Valente v. Textron, Inc., 931 F. Supp. 2d 409, 416-29
(E.D.N.Y. 2013); Colgan Air, Inc. v. Raytheon Aircraft Co., 535 F. Supp. 2d 580, 58385 (E.D. Va. 2008); Bowoto v. Chevron Corp., No. C 99-02506 SI, 2006 WL 1627004,
at *2-3 (N.D. Cal. June 12, 2006). The autopsy data is by no means clear to a lay
person. How to translate the data into wounds expressing certain vectors or
following certain trajectories requires the application of expertise. Assessing
reliability requires, in part, reliance on such expertise. In the absence of such

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expertise, the Court will not require the defendants to “stipulate” to plaintiffs’
decisions as to vectors, arm positions, or trajectories. That would be the equivalent
of requiring stipulation to expert opinion. The Court is left unable to determine
reliability, and credits the defendants’ view as to potential issues with reliability.
Preclusion for that reason is appropriate. Where a demonstrative aid threatens to
mislead, rather than assist, the jury, it is appropriate for the Court to exclude it.
In this case, the nature of the model also implicates the concerns addressed
by Rule 403. The model purports to demonstrate the trajectories the first set of
shots took through Mr. Jaquez’s body by means of metal rods placed through entry
and exit wounds on the model. (ECF No. 205, Exh. 1.) The overall appearance is of
a torso pierced through. This may convey a misleading view of certain wounds.
Although plaintiffs have not provided the Court with a description of their planned
use of the sculpture outside of Mr. Beattie’s proposed testimony, the nature of the
sculpture emphasizes the wounds not directly at issue in this trial and illustrates
them with a permanence and clarity that no party could claim accurately reflects
the scene an observer would have witnessed at the relevant moment just before Sgt.
Flores fired the final shot.
In addition to the foregoing reasons, the probative value of the sculpture is
diminished by the other evidence in this case. There are a wide variety of sources,
including testimony, reports, and autopsy photos, which document the placement of
bullet wounds on Mr. Jaquez. The existence of that evidence diminishes the value
of this interpretive model, as wound placement is the only “factual” matter that the

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model would properly convey to the jury; efforts to use the rods in the sculpture as a
proxy for trajectory testimony from an expert are necessarily precluded.
Therefore, defendants’ tenth motion in limine is GRANTED.
K.

Defendants’ MIL #11: Patrol Guide Provisions

Defendants’ eleventh motion in limine seeks to preclude plaintiffs from
referring to or offering portions of the NYPD Patrol Guide and a related Interim
Order. (Defs.’ Mem. at 25-26.) Plaintiffs respond that they do not intend to use
such documents in their case in chief, but seek to reserve their right to use them as
impeachment materials. (Pls.’ Resp. at 15.) Accordingly, defendants’ eleventh
motion in limine is GRANTED. The Court is at this time unclear how these
materials would constitute proper impeachment evidence, and as the Court states
above, proffering evidence “for impeachment” is not a magic door-opener to
admission of otherwise excluded evidence. If plaintiffs believe there is a proper use
for them as impeachment in response to a specific line of questioning at trial, they
may make an appropriate application at that time.
L.

Defendants’ MIL #12: Dr. Zachary Blumkin

Plaintiffs have identified Zachary Blumkin, Ph.D., as a fact witness who
treated Mr. Jaquez’s son A.J. Plaintiffs state that Dr. Blumkin’s testimony will be
probative of the damages for loss of parental guidance which flowed from the fact of
Mr. Jaquez’s death. Defendants’ twelfth motion in limine seeks to preclude the
testimony of Dr. Blumkin on the ground that plaintiffs’ disclosure of this witness
was insufficient. Plaintiffs respond that Dr. Blumkin will not testify as an expert

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witness, but instead as a fact witness regarding observations of A.J., and as such
the information plaintiffs previously provided about Dr. Blumkin was sufficient to
avoid any undue surprise.
It appears to the Court that Blumkin’s availability as a witness raises two
separate issues. One is whether the failure to disclose him works to preclude him.
The other is whether there is a triable issue as to which his testimony is relevant.
In term of the Rule 26 disclosure issue, the Court sees no insurmountable
problem with Dr. Blumkin appearing as a witness. Although he was not identified
in any initial disclosure, his name and contact information were apparently
produced to the defendants during fact discovery. Defendants were apparently
aware of his existence long ago and could have moved to depose him. It is clear that
in this instance his testimony should not come as a surprise to defendants.
Dr. Blumkin’s proposed testimony does, however, raise an additional issue
relating to the damages that are cognizable in this case. If the issue to be tried –
that is, bullet wound A – did not proximately cause Mr. Jaquez’s death, Dr.
Blumkin’s testimony would be irrelevant and precluded for that reason. As
discussed more fully in the Court’s companion decision, questions of causation will,
as always, be essential to determining what evidence the jury can hear and what
damages the jury is instructed to award. The Court has set a schedule by which
plaintiffs will have to proffer evidence that could support a rational inference that
the final shot proximately caused/was a significant contributing factor in Mr.
Jaquez’s death.

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Accordingly, defendants’ twelfth motion in limine is DENIED as to the
disclosure issue; however, the admissibility of Dr. Blumkin’s testimony will turn on
plaintiffs’ proffer of evidence suggesting a causal link between the final shot at issue
in this trial and Mr. Jaquez’s death.
M.

Defendants’ MIL #13: The Diagrams Officers Created

Defendants’ thirteenth motion argues that floor plans marked up by nonparty detectives during their depositions should not be admitted as evidence in the
plaintiffs’ case-in-chief. (Defs.’ Mem. at 29-30.) Plaintiffs do not oppose this
request, but seek to reserve the right to use them for impeachment purposes. (Pls.’
Resp. at 17.) Accordingly, defendants’ thirteenth motion in limine is GRANTED.
The Court again cautions that the mere fact that evidence is properly used to
impeach a witness does not necessarily mean it is admissible as substantive
evidence; the Federal Rules of Evidence still apply.
N.

Defendants’ MIL #14: Pre-Incident Photographs

Defendants’ fourteenth motion argues that plaintiffs should be precluded
from introducing two pre-incident photographs depicting (1) Mr. Jaquez holding an
infant (Pls.’ Resp., Ex. B, ECF No. 216-2), and (2) Mr. Jaquez with Ms. Martinez
and a child (Pls.’ Resp., Ex. C, ECF No. 216-3). (Defs.’ Mem. at 30.) Defendants
argue that the photographs should be precluded because they were not produced
during discovery (and not provided to defendants until April 7, 2015), and because
they are irrelevant and designed solely to invoke the jury’s sympathy. Plaintiffs
counter that defendants never asked for the photographs during discovery and were

26

produced immediately after they were found, and argue that the photographs are
relevant to damages as proof that Mr. Jaquez provided support to his wife and
children and to show Mr. Jaquez’s overall size and well-being. (Pls.’ Resp. at 17-18.)
Plaintiffs also claim in their responses to specific evidentiary objections in the JPTO
that the photos are relevant to damages insofar as they demonstrate family
involvement. The Court separates whether the photos might be admissible for a
purpose other than damages from their admissibility specifically as to damages.
First, the Court need not pause long on the disclosure issue. There is no real
prejudice identified by defendants as a result of such disclosure. Second, to the
extent the photos are offered for a non-damages reason, such as demonstrating Mr.
Jaquez’s size, the Court agrees that neither of the pre-incident photographs are
relevant to any issue in this case, and to the extent they are minimally relevant,
their probative value is substantially outweighed by the danger of unfair prejudice
under Rule 403. In the absence of a clear tie to a cognizable avenue of recovery as
proper damages, the only purpose of these photos would be to elicit sympathy. The
photographs are minimally probative, at best, of Mr. Jaquez’s size and overall wellbeing because neither photograph shows Mr. Jaquez’s size in a non-misleading
way—one photograph depicts Mr. Jaquez from the torso up and only provides a size
comparison to a newborn, while the second photograph suggests that Ms. Jaquez is
slightly taller than Ms. Martinez, without indicating in any way the absolute
heights of Mr. Jaquez, Ms. Martinez or the child being held by Ms. Martinez. The
Court believes there are far better, and less prejudicial, evidentiary alternatives to

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show Mr. Jaquez’s size and physical well-being. Old Chief v. United States, 519
U.S. 172, 184 (1997). In contrast to the minimal relevance of these photographs
with respect to the purposes for which plaintiffs seek to offer them, the photographs
create a significant likelihood of unfair prejudice because they clearly serve to elicit
sympathy from the jury. Their introduction at trial for non-damages reasons is
therefore appropriately precluded.
However, if there is a proffer of evidence that would support a finding that
the final shot substantially contributed to/proximately caused Mr. Jaquez’s death,
the admissibility of the photos as probative of damages presents a different
question. The Court’s guidance as to questions of proximate cause are contained
elsewhere in this opinion and the companion opinion. If plaintiffs’ factual proffer
makes damages stemming from the fact of Mr. Jaquez’s death an appropriate issue
in this trial, the Court would allow the photos as probative of Mr. Jaquez’s family
involvement and therefore of damages.
Accordingly, defendants’ fourteenth motion in limine is GRANTED in part.
O.

Defendants’ MIL #15: Amending the Caption

Defendants’ fifteenth motion seeks to delete all parties other than Mr.
Jaquez’s estate, Ana Martinez, and Sgt. Flores from the caption of this matter.
(Defs.’ Mem. at 30-32.) Plaintiffs agree that the individual defendants other than
Sgt. Flores should be removed but otherwise oppose. (Pls.’ Resp. at 18-19.)
As to whether the City should remain listed in the caption as a defendant,
the parties agree that the City is only liable to the plaintiffs, if at all, under the

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doctrine of respondeat superior as it applies to the remaining (at this time) state
law claims, wrongful death and assault and battery. The jury will not be instructed
on any theory by which it could find the City directly liable; instead, the City’s
liability, if any, is solely derivative of the actions taken by its employees within the
scope of their duties. As such, there is no need to inform the jury that the City
remains potentially liable on a derivative theory, and for the reasons set forth above
regarding other references to the City, its name will be deleted from the caption.
As to whether N.J., J.J., and A.J. should properly remain listed as plaintiffs,
the Court agrees that because their derivative claims were dismissed there is no
basis for them to remain as named plaintiffs. (ECF No. 128.) As discussed
elsewhere in this opinion and the companion opinion, depending on the evidence
proffered and presented at trial it may be that N.J., J.J., and A.J.’s experiences
concerning their father’s death are relevant to damages, in which case the Court
will receive testimony and evidence on that topic. This does not, however, require
or allow them to be listed as additional plaintiffs when they do not personally have
a surviving cognizable cause of action against defendants.
Accordingly, defendants’ fifteenth motion in limine is GRANTED.
P.

Defendants’ MIL #16: Availability of a Negligence Charge

Defendants’ sixteenth and final motion in limine seeks a determination that
the jury will not be instructed on a negligence claim. (Defs.’ Mem. at 32-34.) In
support of this argument, defendants cite cases in support of “the mutual
exclusivity of negligence and battery.” See, e.g., Oliver v. Cuttler, 968 F. Supp. 83,

29

92 (E.D.N.Y. 1997); Schmidt v. Bishop, 779 F. Supp. 321, 324-25 (S.D.N.Y. 1991).
Plaintiffs respond that the alleged negligence is not the conduct directly at issue in
the excessive force/assault and battery claims against Sgt. Flores, but instead “Sgt.
Flores’s failure to warn Mr. Jaquez as well as his failure to treat Mr. Jaquez by
delaying medical attention to Mr. Jaquez after the shooting.” (Pls.’ Resp. at 19.)
The operative complaint in this matter does not assert or identify this new
negligence theory. The only cause of action that sounds in negligence was
specifically asserted “against municipal defendant,” not against Sgt. Flores, and
specifically asserts negligent screening, hiring, retention, training, and supervision.
(ECF No. 72 at 17.) Moreover, this cause of action was dismissed by a previous
Court order. (ECF No. 84 at 14-15.) “Plaintiffs never pled this new theory of
liability and therefore have waived any claims relating to it.” In re IBM Corp. Secs.
Litig., 163 F.3d 102, 110 (2d Cir. 1998).
Accordingly, defendants’ sixteenth motion in limine is GRANTED.
Q.

Plaintiffs’ MIL #1: Limits on George Krivosta’s Testimony

Plaintiffs’ first motion in limine seeks to limit the testimony of defendants’
proposed expert forensic scientist/ballistic consultant, George Krivosta. (Pls.’ Mem.
at 3-7.) Based on his resume, Mr. Krivosta appears to have significant experience
in the field, and he has been qualified as an expert by a number of other courts.
These facts alone do not, however, make up for the surprising and serious
deficiencies in his report. The “Reconstruction of the Shooting” and “Summary”
sections of Mr. Krivosta’s report (ECF No. 207, Exh. 1, at 15-19, 21-22) are entirely

30

ipse dixit, untethered to any appropriate discussion of how he reached his
conclusions according to methods experts use in the field, techniques described in
the literature, or data of any kind. Presumably, based on his experience, the Court
and jury are supposed to simply accept his assertions as necessarily grounded in
acceptable and reliable methods. The Rules of Evidence require far, far more. He
will thus be precluded from testifying.
Under the familiar standards of Federal Rule of Evidence 702 and the
associated case law, “expert testimony may help a jury understand unfamiliar
terms and concepts,” United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991),
but the Court nonetheless has an obligation to act as a gatekeeper. See, e.g.,
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). The Court’s
inquiry under Rule 702 includes a review of (1) the qualifications of the proposed
expert; (2) whether each proposed opinion is based upon reliable data and reliable
methodology; and (3) whether the proposed testimony would be helpful to the trier
of fact. See, e.g., Nimely v. City of New York, 414 F.3d 381, 396–97 (2d Cir. 2005).
With respect to reliability, “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.” United States v. Williams, 506 F.3d 151, 160 (2d
Cir. 2007). Logically, in order for the Court to evaluate the reliability of the data

31

and methodology and the grounding of the expert’s opinion therein, that data and
methodology must be disclosed.
Conclusory opinions unsupported by reliable data are present throughout the
report. Mr. Krivosta fails to describe how his training supports his opinions,
whether the undisclosed interpretive methods he uses are accepted in the field, and
what data he is interpreting according to what methodology. He therefore provides
no basis by which the Court could conclude that his testimony is reliable and
helpful to the factfinder in this case.
Accordingly, plaintiffs’ first motion in limine is GRANTED.
R.

Plaintiffs’ MIL #2: Ms. Martinez’s Immigration Status

Plaintiffs’ second motion seeks to preclude any questions or evidence about
Ms. Martinez’s immigration status and asserts that plaintiffs do not intend to elicit
information about this status. (Pls.’ Mem. at 7-8.) Defendants respond that they do
not intend to elicit testimony on this topic or offer evidence about this status.
(Defs.’ Resp. at 6.) Plaintiffs’ second motion in limine is therefore GRANTED.
S.

Plaintiffs’ MIL #3: Evidence Regarding Pornographic Videos

Plaintiffs’ third motion seeks to preclude any reference to the fact that Mr.
Jaquez was watching pornographic videos in his bedroom prior to the incident that
resulted in this death. (Pls.’ Mem. at 8.) Defendants’ assert that they do not intend
to offer any information on this topic into evidence, but seek to reserve their right to
do so “if plaintiff opens the door.” (Defs.’ Resp. at 6.) Therefore, at this time
plaintiffs’ third motion in limine is GRANTED. The parties are cautioned that if

32

death-related damages are cognizable and plaintiffs seek damages based on Mr.
Jaquez’s bond with his family and guidance to his children, the door might be
opened to a variety of evidence, including this.
T.

Plaintiffs’ MIL #4: The Autopsy Photos

Plaintiffs’ fourth motion in limine seeks a determination that the photos
taken during Mr. Jaquez’s autopsy are admissible. (Pls.’ Mem. at 9-16.) The Court
addresses this motion in a forthcoming separate decision.
U.

The 911 Calls

Finally, although neither party specifically moved in limine for a ruling on
plaintiffs’ objection to defendants’ proposed use of the 911 calls, the Court takes this
opportunity to lay out its view of this question before the final pretrial conference.
The 911 calls, and the transcripts thereof, convey the statements of individuals
speaking about a distressing, ongoing emergency. They therefore fall within two
different exceptions to the hearsay rule, as they constitute excited utterances under
Federal Rule of Evidence 803(1) and present sense impressions under Federal Rule
of Evidence 803(2). United States v. Jones, 299 F.3d 103, 112-13 (2d Cir. 2002).
The contemporaneous description of a startling event, made to a 911 operator for
purpose of seeking emergency assistance, is a sufficiently reliable out of court
statement to merit admission into evidence under these well-recognized rules.
The Court cautions that its ruling is limited to the 911 calls and transcripts;
the disc defendants provided also contains several hours of audio recordings that

33

appear to capture radio communications among police officers, as to which this
opinion has no bearing.
III.

CONCLUSION
For the foregoing reasons, defendants’ first, second, third, fourth, sixth,

eighth, ninth, tenth, eleventh, thirteenth, fifteenth, and sixteenth motions in limine
are GRANTED; defendants’ seventh and fourteenth motions in limine are
GRANTED IN PART; defendants’ twelfth motion in limine is DENIED; and
plaintiffs’ first, second, and third motions in limine are GRANTED. As to the issues
raised in defendants’ fourth and ninth motions in limine, plaintiffs may seek
reconsideration of these rulings as explained in this decision.

SO ORDERED.
Dated:

New York, New York
March 17, 2016

______________________________________
KATHERINE B. FORREST
United States District Judge

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