Bak et al v. Metro-North Railroad Company et al
OPINION AND ORDER: This Clerk of Court is directed to terminate the motions listed as items 236 and 242 on the docket. Trial will commence May 11, 2015 at 10:30 a.m. (Jury Trial set for 5/11/2015 at 10:30 AM before Judge Thomas P. Griesa.) (Signed by Judge Thomas P. Griesa on 5/8/2015) (kl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BAK, et al.,
12 Civ. 3220 (TPG)
METRO-NORTH RAILROAD COMPANY.,
OPINION AND ORDER
In an April 16, 2015 decision, the court denied a motion for summary
Management. A jury trial is scheduled to begin May 11, 2015.
Before the court are two motions in limine.
(See Dkt. Nos. 236, 242.)
The court addresses some, but not all, aspects of the pending motions here.
Those aspects of any pending motion in limine not resolved by this order will be
addressed by the court from the bench at trial.
1. Defendants' Joint Motion in Limine (Dkt. No. 236)
The first motion in limine, filed jointly by all defendants remaining in this
action, seeks to preclude:
(1) testimony of plaintiffs experts Berkowitz,
Thanning, Serby, and Crakes; (2) evidence of the decedent's pre-impact terror
and conscious pain and suffering; (3) evidence of loss of household services;
reconsideration of the court's finding of a duty of care on the part of defendant
ABM. (See Dkt. No. 242.)
Having reviewed the parties' arguments, the court rules as follows:
A. The motion is denied to the extent it seeks to preclude the testimony
of plaintiffs experts Berkowitz, Thanning, Serby and Crakes.
B. The motion is denied to the extent it seeks to preclude evidence of the
decedent's pre-impact terror and conscious pain and suffering.
C. The court reserves judgment as to whether evidence regarding loss of
household services is admissible in this case.
D. The motion is granted to the extent it seeks to preclude argument that
punitive damages may be awarded against defendant Metro-North.
The court reserves judgment as to whether plaintiff may seek punitive
damages against defendants Fusco or ABM.
E. The motion is granted to the extent it seeks to clarify the duty owed by
defendant ABM to the decedent. The court agrees that ABM's duty to
the decedent was limited only to the duty to perform regular patrols
and of the platform and other relevant areas.
The court will not
instruct the jury that ABM owed a duty to monitor cameras surveilling
2. Defendant Metro-North's Joint Motion in Limine (Dkt. No.
The second motion zn limine, filed by defendant Metro-North, seeks to
exclude evidence of post-remedial measures under Federal Rule of Evidence
407. (See Dkt. No. 242.) This motion is granted. Under Rule 407, evidence of
subsequent remedial measures cannot be offered to prove liability for
At summary judgment, the court considered evidence of Metro-
North's post-remedial measures for purposes of establishing ownership or
control of the area of the guardrail at issue in this case. (See Dkt. No. 230 at
Now that Metro-North's control and corresponding duty with respect to
the guardrail has been established as a matter of law, however, the parties
need not-and may not-present evidence of Metro-North's post-remedial
measures to the jury.
Such evidence is inadmissible under Rule 407, and
would also likely lead to prejudice and confusion under Rule 403.
Plaintiff argues that, despite the court's ruling on summary judgment,
Metro-North has indicated that it plans to dispute its control over the guardrail
at trial, or alternately plans to argue that certain repairs to the guardrail were
not feasible. Metro-North is cautioned that, to the extent it insists on disputing
control over the guardrail or making feasibility of repair arguments at trial, the
court may allow proof of subsequent remedial measures to come in as rebuttal
or impeachment evidence.
See Fed. R. Evid. 407 (A "court may admit this
evidence for another purpose, such as impeachment or -
proving ownership, control, or the feasibility of precautionary measures.").
This Clerk of Court is directed to terminate the motions listed as items
236 and 242 on the docket.
Trial will commence May 11, 2015 at 10:30 a.m.
Dated: New York, New York
May 8, 2015
Thomas P. Gnesa
U.S. District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?