Tardif v. City of New York et al

Filing 434

ORDER: denying 404 Motion in Limine. The Clerk of Court is respectfully directed to terminate the pending motion at ECF No. 404. SO ORDERED. (Signed by Judge Kimba M. Wood on 4/28/2022) (ama)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MARY TARDIF,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: __________________
DATE FILED:
4/28/2022

Plaintiff,
13-CV-4056 (KMW)

-v-

ORDER

CITY OF NEW YORK,
Defendant.
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KIMBA M. WOOD, United States District Judge:
This Order serves to memorialize the rulings made yesterday during the pretrial
conference in this case. For the reasons discussed at the conference:
1. Defendant’s fifth motion in limine 1 is resolved as follows: Plaintiff’s Exhibit 5 in the
Proposed Joint Pretrial Order (ECF No. 397), NYPD Patrol Guide, Procedure 203-11
Use of Force, is inadmissible at trial. The Court will withhold a ruling on the
admissibility of Plaintiff’s Exhibit 7 in the Proposed Joint Pretrial Order, the NYPD
Aided Cases General Procedure/Worksheet. If Plaintiff seeks to introduce that
document into evidence at trial, Plaintiff should be prepared to provide new
arguments regarding the probative value of the document.
2. Defendant’s seventh motion in limine is denied. Evidence regarding the conduct of
the officers previously identified as John Doe numbers 8 and 9 is tentatively ruled to
be admissible. Plaintiff may pursue cross-examination and produce her own witness

1

Defendant’s motions in limine are detailed in its memorandum of law. (ECF No. 390.) Plaintiff’s motion in
limine relating to the visibility of her service dog is detailed in her memorandum of law. (ECF No. 405.)

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for direct examination regarding whether Ms. Tardif was pushed by another officer
prior to the incident with Sergeant Mattera.
3. All motions in limine that could reasonably have been foreseen by the deadline for
motions in limine (February 28 for Defendant, March 14 for Plaintiff) are precluded
unless the movant can show good cause. Only new evidence can be the subject of a
new motion in limine.
4. Plaintiff must bring to the Court’s attention by May 4, 2022 any excerpts of
Plaintiff’s medical records that she seeks to introduce at trial. The parties must meet
and confer regarding this subject by May 6, 2022. By May 9, 2022, the parties shall
submit to the Court a joint letter regarding their positions on the redaction of medical
records and any alternative proposed redactions.
5. Plaintiff’s second motion in limine is denied. (See Pl. Mot. in Lim., ECF No. 404; Pl.
Mem. at 3, ECF No. 405.) Plaintiff may be accompanied by her service dog, Daisy,
during trial. However, if Daisy is visible to jurors, Daisy is likely to distract jurors
and is likely to risk engendering undue sympathy for Plaintiff. Thus, while Daisy is
in the courtroom, she may be next to Plaintiff, but she must remain under a covered
table, invisible to jurors. Plaintiff and Daisy must not walk in or out of the courtroom
at the same time as jurors. Other courts have issued similar orders with respect to
service dogs and support dogs. See, e.g., Ebrahimi v. Barrett, No. 2:17-13738, 2020
WL 5548378, at *6 (E.D. Mich. Sept. 16, 2020); Commonwealth v. Purnell, 233 A.3d
824, 837 (Pa. Super. Ct. 2020), aff’d, 259 A.3d 974 (Pa. 2021); Jones v. State, 841
S.E.2d 112, 122 (Ga. Ct. App. 2020). Plaintiff and Daisy must be present in court
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one-half an hour before trial resumes, to limit the likelihood that jurors will see
Plaintiff accompanied by Daisy.
6. Defendant’s objection to Plaintiff’s intended introduction of Defendant’s Rule 56.1
statement, identified as Plaintiff’s Exhibit 25 in the Proposed Joint Pretrial Order, is
moot. During the pretrial conference, Plaintiff disclaimed any intention to seek to
introduce this Rule 56.1 statement at trial.
7. The parties shall appear before the Court with Dawn Brunetti and Dianne Laroe for
voir dire questioning in Courtroom 26A on May 5, 2022 at 11 a.m. Plaintiff shall
make arrangements with the Southern District of New York’s Courtroom Technology
department to ensure that Dianne Laroe can appear virtually for voir dire questioning.
By May 2, 2022, the parties shall submit to the Court a copy of any extrinsic evidence
connected to either witness, including the ambulance call report from March 21, 2012
and the Civilian Complaint Review Board documents and audio recording mentioned
during the pretrial conference. This submission must direct the Court’s attention to
the specific excerpts of these sources that the parties will seek to introduce, if Ms.
Brunetti or Ms. Laroe were to testify at trial, including time stamps for the audio
recording of Ms. Laroe.
8. Plaintiff’s counsel may submit a new subpoena for the Court to order Ms. Brunetti to
appear.
9. The Court holds in abeyance its consideration of whether to bifurcate this trial into,
first, a phase dealing solely with liability; and second, a phase dealing solely with
computation of damages.
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10. The parties have agreed that a jury of seven is appropriate for this trial.
11. The parties are each permitted seven hours of trial time. This time includes direct
examination of witnesses, re-direct examination, cross-examination, and re-crossexamination. Opening and closing statements are not counted toward these time
limits, but each opening or closing statement by a party should last no more than
fifteen minutes.
12. The parties must order daily transcripts of trial proceedings, yesterday’s pretrial
conference, and any future pretrial proceedings, such as voir dire questioning. The
cost of these transcripts shall be split evenly between the parties.
13. The parties shall submit to the Court two copies of tabbed binders of exhibits, as
required by this Court’s Individual Rule 4(A)(xi). These binders shall be no more
than one-inch thick, and not 1.5 inches as is mentioned in this Court’s Individual Rule
4(A)(xi).
14. The parties must meet and confer by May 4, 2022 regarding the use of video
recordings during opening statements. By May 6, 2022, the parties shall submit to
the Court a joint letter summarizing the outcome of this discussion, including when
the parties will test the videos, if they choose to use them, with assistance from the
Courtroom Technology department.

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15. Plaintiff has permission to use TrialDirector software, subject to agreement by the
Courtroom Technology department. Defendant may also use the software. Plaintiff’s
counsel must contact the Courtroom Technology department regarding this subject no
later than May 11, 2022.

CONCLUSION
The Clerk of Court is respectfully directed to terminate the pending motion at ECF No.
404.
SO ORDERED.
Dated: New York, New York
April 28, 2022

/s/ Kimba M. Wood
KIMBA M. WOOD
United States District Judge

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