Yang v. Navigators Group, Inc.

Filing 127

OPINION AND ORDER re: 115 MOTION in Limine . filed by Navigators Group, Inc., 112 MOTION in Limine . filed by Jennifer Yang. For the foregoing reasons, Defendant's motion in limine is DENIED AS MOOT. Plaintiff� 39;s motions in limine are GRANTED in part and DENIED in part: Defendant's mitigation expert testimony is preliminarily limited in accordance with this Opinion, and Defendant's witnesses may not testify via a live video feed. The Court r espectfully directs the Clerk of the Court to terminate the motions at ECF Nos. 112 & 115. The parties are directed to appear at the previously scheduled final pretrial conference on May 19, 2017 at 10:30 a.m. ( Final Pretrial Conference set for 5/19/2017 at 10:30 AM before Judge Nelson Stephen Roman.) (Signed by Judge Nelson Stephen Roman on 5/18/2017) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JENNIFER YANG,
Plaintiff,
No. 13 Civ. 2073 (NSR)
OPINION & ORDER

-againstNAVIGATORS GROUP, INC.,
Defendant.
NELSONS. ROMAN, United States District Judge

In anticipation of trial scheduled to begin on May 30, 2017, on Plaintiff Jennifer Yang's
claims for violations of the anti-retaliation provision of the Sarbanes-Oxley Act, 18 U.S.C.

§ 1514A, and the whistle blower protection provision of the Dodd-Frank Act, 15 U.S.C. § 78u6(h)(l ), by her former employer Defendant Navigators Group, Inc., Plaintiff and Defendant have
each moved in limine to preclude the other from introducing certain evidence at trial and to allow
ce1tain testimony to be received via live videoconferencing rather than in person.
For the following reasons, the motions are GRANTED in part and DENIED in part.
OVERVIEW 1

Plaintiffs motions in limine (ECF No. 112) seek to preclude a) defense expert Chad
Staller from testifying at trial with regard to Plaintiffs efforts to mitigate her damages and

1 The

Comt presumes the pa1ties' familiarity with the facts previously summarized in its Opinions in this matter and
will not restate them here. See generally Yang v. Navigators Gip., Inc., 18 F. Supp. 3d 519 (S.D.N.Y. 2014)
(denying Defendant's motion for judgment on the pleadings and granting Plaintiff's motion to amend her
complaint); Yang v. Navigators Gip., Inc., 155 F. Supp. 3d 327 (S.D.N.Y. 2016) (opinion on motion for summaiy
judgment), vacated and remanded, No. 16-77-CV, --- F. App'x ----, 2016 WL 7436485, at *2 (2d Cir. Dec. 22,
2016) (finding Plaintiff had "adequately placed the[] issues" of whether she engaged in protected activity and

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b) defense witnesses from testifying at trial via live videoconferencing. 2 Defendant's motion in
limine (ECF No. 115) seeks to preclude Plaintiff from introducing any evidence related to her
alleged reputational loss.3 As a preliminary matter, by letter dated May 5, 2017, Plaintiff noted
she had "withdrawn her reputation loss claim which was the subject of Defendant's motion[.]"
(Pl. Reply at 2.) Thus, Defendant's unopposed motion is moot: Plaintiff has agreed to not
introduce any exhibits or testimony relating to any alleged reputational loss, and the Court will
enforce that agreement.
The remaining issues for the Comt to decide are whether the defense expe1t should be
permitted to testify at trial regarding the sufficiency of Plaintiffs mitigation efforts and whether
ce1tain defense witnesses should be permitted to testify via live video-conferencing.
LEGAL STANDARDS GOVERNING PRELIMINARY RULINGS ON
THE ADMISSIBILITY OF EVIDENCE

"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 ce1tain forecasted evidence, as to issues that are
definitely set for trial, without lengthy argument at, or interruption of, the trial." Palmieri v.
Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (internal citation and quotation marks omitted); see
generally Luce v. United States, 469 U.S. 38 (1984). Upon such a motion, the Comt is called
upon "to make a preliminary determination on the admissibility of the evidence under Rule I 04
of the Federal Rules of Evidence." Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp. 2d

whether that activity or intervening events led to her termination "in dispute such that a reasonable factfinder could
conclude her protected activity contributed to her termination").
2

The paities have fully briefed these issues. (See Pl. Mem. in Supp. of Mot. ("Pl. Mem."), ECF No. 113 & Ex. A
("Staller Rep01t"); Def. Mem. in Opp'n to Mot. ("Def. Opp'n"), ECF No. 118; Pl. Reply to Def. Opp'n ("Pl.
Reply"), ECF No. 119.)
3

Although Defendant briefed this issue, Plaintiff did not oppose it. (See Def. Mem. in Supp. of Mot. ("Def.
Mem."), ECF No. 116; Deel. A. Michael Weber in Supp. of Def. Mot. ("Weber Deel."), ECF No. 117.)

2

461, 467 (S.D.N.Y. 2005). Only evidence that is "clearly inadmissible on all potential grounds"
should be excluded on a motion in limine. United States v. Paredes, 176 F. Supp. 2d 179, 181
(S.D.N.Y. 2001) (internal citations omitted).
The Court generally looks to Rules 401, 402, and 403 of the Federal Rules of Evidence to
determine whether the contested evidence is admissible at trial. Under Rule 402, only relevant
evidence is admissible. Evidence is relevant if "it has any tendency to make a fact more or less
probable than it would be without the evidence ... and the fact is of consequence in determining
the action." Fed. R. Evid. 401. Relevant evidence may still be excluded by the Comt "if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jmy, undue delay, wasting time, or needlessly
presenting cumulative evidence." Fed. R. Evid. 403. Though the "standard ofrelevance
established by the Federal Rules of Evidence is not high," United Stales v. Southland Corp., 760
F.2d 1366, 1375 (2d Cir. 1985), the Comt has "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)); see also
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (quoting United Stales v.
Abel, 469 U.S. 45, 54 (1984)) ("Assessing the probative value of [the proffered evidence], and
weighing any factors counseling against admissibility is a matter first for the district court's
sound judgment under Rules 401and403").
As the Comt does not have the benefit of viewing the proposed evidence in the context of
trial, an in Ii mine ruling may be "subject to change when the case unfolds, particularly if the
actual testimony differs from what was contained in the [party's] proffer." Paredes, 176 F.
Supp. 2d at 181 (quoting Luce, 469 U.S. at 41). Similarly, "[i]fthe potential relevance of

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evidence is uncertain prior to trial, the comt may choose to reserve judgment." Goodwine v.
National R.R. Passenger Co1p., No. 12 Civ. 3882 (TLM), 2014 WL 1010928, at *l (E.D.N.Y.

Mar. 17, 2014) (citing Bonilla v. Janovick, No. 01 Civ. 3988 (SJF) (ETB), 2007 WL 3047087,
at *2 (E.D.N.Y. Oct. 16, 2007)).
DISCUSSION

I.

Mitigation Expert

A defendant employer bears the evidentiary burden to show failure to mitigate by the
employee. See Greenway v. Buffalo Hilton Hotel, 143 F.3d 4 7, 53 (2d Cir. 1998). A wrongfully
terminated employee '"must use reasonable diligence in finding other suitable employment,'
which need not be comparable to [her] previous positions." Id. (internal citation omitted).
"Generally speaking, this requires the employer to show that suitable work exists in the
marketplace and the discharged employee 'has not made reasonable efforts to find it."' Roniger
v. McCall, No. 97 Civ. 8009 (RWS), 2000 WL 1191078, at *3 (S.D.N.Y. Aug. 22, 2000)

(quoting Greenway, 143 F.3d at 53). Nevertheless, "there is an exception to the requirement that
the employer establish the availability of comparable employment 'if it can prove that the
employee made no reasonable efforts to seek such employment.'" Id (quoting Greenway, 143
F.3d at 54). Clearly testimony relating to an employee's effmts-and the reasonableness of
those effmts-to secure alternative employment is relevant to and thus potentially admissible on
the issue of mitigation.
Plaintiffs motion to preclude proffered expert Staller's testimony is premised on his
purported lack of expertise regarding job searches and the current lack of sworn testimony
regarding the facets of Plaintiffs particular job search. (See Pl. Reply at I.) Plaintiffs one-page
argument, though sounding vaguely like a Daubert motion, does not cite Daubert v. Merrell
Dow Phann., Inc., 509 U.S. 579, 590 (1993), its progeny, or Federal Rule of Evidence 702.

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Instead, Plaintiff simply argues in a conclusory fashion that Staller's opinion testimony consists
of"pure conjecture," given his lack of experience and the lack of available information upon
which to base such an opinion, and would "intrude upon the proper province of the jury as fact
finder." (Pl. Mem. at 2.)4 Defendant counters that "Mr. Staller analyzed various guidelines by
the U.S. Depaitment of Labor and the New Jersey Department of Labor regarding the elements
of a reasonably diligent search, and then analyzed Plaintiffs job search based on such
guidelines." (Def. Opp'n at 2.)
To be sure, the "guidelines" referenced in the proffered expe1t repo1t were designed for
use by the general public, undercutting Plaintiffs argument that Staller needs special
qualifications to perform his analysis of Plaintiffs mitigation effmts. (See Staller Report at 4-5.)
But "however simple [a] method or theory," it must be accompanied by "some explanation
thereof so that it can be evaluated as to its reliability." Roniger, 2000 WL 1191078, at *3.
Having reviewed the repo1t and the analyses and opinions contained therein, the Comt concludes
that certain aspects of Staller's proffered testimony are sufficiently relevant and reliable to be
introduced at trial, while other portions of the anticipated testimony are irrelevant, unreliable, or
unduly prejudicial based on the inapposite analysis unde1taken.
Staller may testify at trial regarding his analysis of Plaintiffs job search as compared
specifically to one set of guidelines. In his report, Staller outlined Plaintiffs employment
history, qualifications, and salary history. Then, Staller provides a summary of Plaintiffs
attempts to seek employment based on information obtained during discovery. Finally, referring
to an United States Depaitment of Labor publication from 1993 (updated by the New York State

4

Pia inti ff does not contest the other areas of anticipated testimony, such as Staller's critique of Plaintiff"s proposed

da1nagcs calculations and assumptions.

5

Department of Labor in 2006) that provides out-of-work professionals with advice on how to
secure employment ("U.S. D.O.L. Guidelines"), 5 Staller opines that Plaintiffs documented job
search was not diligent when compared to those recommendations. (See Staller Report at 7
(pointing to Plaintiffs failure to "network[] with former employers, colleagues, professional
associations, and alumni organizations at [her alma maters ]").) This straightforward and
simplistic approach, which is surely subject to a vast number of critiques on cross-examination,
neve1theless is sufficiently described to be evaluated by Plaintiff and this Court. Finding it
sufficiently reliable, the Court will allow this po1tion of Staller's analysis, since it is relevant and
may aid the trier of fact in determining whether Plaintiff was actively seeking comparable
employment in order to mitigate her alleged damages. See, e.g., Castelluccio v. Int 'I Bus.
Machines C01p., No. 09 Civ. 1145 (DJS), 2012 WL 5408420, at *3 (D. Conn. Nov. 6, 2012)
(expert could "compare [plaintiffs] job search efforts to an industry standard for such job
searches without substituting the expe1t's judgment for that of the jury").
In contrast, Staller provides no citation to the statistics used in forming his opinions
regarding Plaintiffs expected period of unemployment post-termination. His apparent theorycomparing Plaintiff to any employee over the age of 25-is based on data which cannot be
verified or analyzed. Therefore, any opinions based on that data are unreliable. See Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 157 (1999). Moreover, his use ofa New Jersey guideline
related to eligibility for unemployment benefits (see Staller Report at 5-6) is so inapposite to a
thoughtful job-search undertaken by a professional with multiple degrees and over a decade of
employment experience as to render any opinions based on that guideline unreliable and

5

The "Job Search Guide" is available at https://labor.ny.gov/careerservices/findajob/tableco.shtm. Plaintiff did not
address the applicability of this information to a search for jobs post-Great Recession.

6

irrelevant to the question of whether this Plaintiff was using reasonable diligence to find other
suitable employment. See Greenway, 143 F.3d at 53. Such testimony, in contrast to the analysis

based on the U.S. D.O.L. Guidelines, is inadmissible.
Finally, Defendant's expert will not be permitted to offer an opinion going to the hemt of
the ultimate question for the jury-whether Plaintiffs job search was in fact reasonable, diligent,
active, or sufficiently vigorous. See, e.g., Castelluccio, 2012 WL 5408420, at *3 (defense expert
was "not[] permitted to testify that [the plaintiff] did not conduct a 'diligent' job search after his
discharge"); Roniger, 2000 WL 1191078, at *5 (court ruled that the defense expe1t would "not
be permitted to testify to conclusions ... [such as] whether [the plaintiffs] job search was
'reasonable,' 'active and proper,' 'vigorous,' 'serious,' and the like"); Berk v. Bates Advertising
USA, Inc., No. 94 Civ. 9140 (CSH), 1998 WL 726030, at *4 (S.D.N.Y. Oct. 14, 1998) (court did

"not permit [the defendant's expert] to express an opinion as to whether plaintiffs particular
efforts to find employment were reasonable"); but see Fed. R. Evid. 704 ("An opinion is not
[automatically] objectionable just because it embraces an ultimate issue"). The Court is
confident that "[t]hejury is capable of making that determination [based] on all the evidence
[presented] and the Court's instructions, without the assistance of an expert witness" whose
testimony on that point would be needlessly cumulative. Berk, 1998 WL 726030, at *4; see Fed.
R. Evid. 403 & 702(a).

Therefore, Defendant's mitigation expert may offer testimony relating to Plaintiffs
efforts to mitigate her damages, but only within these boundaries.
II.

Testimony via Video-conferencing
Defendant seeks to offer testimony from "Kartina Thomson and Angus Cameron [that]

will [allegedly] contradict the testimony of Plaintiff that, while in London on business, she
complained to them about securities fraud that was occurring in the United States." (Def. Opp'n
7

at 5.) Complaining of the burden and expense of flying these defense witnesses from England to
the United States, Defendant seeks to invoke the good cause exception to live testimony under
Federal Rule of Civil Procedure 43(a).
Rule 43(a) permits trial testimony by "contemporaneous transmission from a different
location," i.e. by video conference or perhaps someday by holographic conference, "for good
cause in compelling circumstances []with appropriate safeguards." Otherwise, the general rule
is that "witnesses' testimony must be taken in open court," id., as the "opportunity to judge the
demeanor of a witness face-to-face is accorded great value in our tradition." Id. at Advisory
Committee Notes, 1996 Amendments; United States v. Int'/ Bus. Machines Co1p., 90 F.R.D.
377, 381 (S.D.N.Y. 1981) ("There is a strong preference for live testimony, long recognized by
the comts, as it provides the trier of fact the opportunity to observe the demeanor of the
witness."). The Advisory Committee Notes to the 1996 Amendments to Rule 43(a) explain that
"[t]he most persuasive showings of good cause and compelling circumstances are likely to arise
when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but
remains able to testify from a different place." See Marta/ Cosmetics, Ltd v. Int 'l Beauty Exch.

Inc., No. 01 Civ. 7595 (TLM) (JO), 2011 WL 887591, at *2 (E.D.N.Y. Mar. 11, 2011)
(nevertheless denying a request for a witness located in London to testify remotely despite
protracted issues securing his deposition testimony and previous requests for accommodations
based on health issues).
Here, Defendant has made a cursory showing of"good cause" and provided even less
with regard to the "compelling circumstances" or "appropriate safeguards" that accompany this
request. This case does not represent one of genuine hardship or logistically impossibility. See,

e.g., Haimdas v. Haimdas, 720 F. Supp. 2d 183, 187 (S.D.N.Y. 2010) ("petitioner, who had been

8

unable to obtain a visa to travel to [the United States], testified via a live video link from
London, England"); Angamarca v. Da Ciro, Inc., 303 F.R.D. 445, 447 (S.D.N.Y. 2012) ("The
legal infeasibility of attending a deposition or trial in person because of one's immigration status
rises to the level of compelling circumstances"). Instead, Defendant argues it is "unreasonable to
force these two witnesses to take off several days of work for a short direct and cross
examination that may only span an hour each." (Def. Opp'n at 6.) Unfo1tunately, there are
expenses involved in litigation. These witnesses are only listed on Defendant's witness list (see
Joint Pre-Trial Order at 5, ECF No. 111), and Defendant has not demonstrated sufficiently
compelling reasons to allow remote testimony, nor cited authority standing for the proposition
that travel expense and inconvenience alone justifies foregoing the live crucible of crossexamination. Cf Aristocrat Leisure Ltd v. Deutsche Bank Trust Co. Americas, No. 04 Civ.
10014 (PKL), 2009 WL 3111766, at *4 (S.D.N.Y. Sept. 28, 2009) (in contrast, a Comt might
justifiably be "concerned about the burden imposed on [a non-party] to travel from outside the
United States to this forum to testify live").
Therefore, Defendant's witnesses must be present in Court during trial to testify.

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CONCLUSION

For the foregoing reasons, Defendant's motion in limine is DENIED AS MOOT.
Plaintiffs motions in limine are GRANTED in part and DENIED in part: Defendant's mitigation
expert testimony is preliminarily limited in accordance with this Opinion, and Defendant's
witnesses may not testify via a live video feed. The Court respectfully directs the Clerk of the
Comt to terminate the motions at ECF Nos. 112 & 115. The parties are directed to appear at the
previously scheduled final pretrial conference on May 19, 2017 at 10:30 a.m.

Dated:

JR..

May
2017
White Plains, New York

SO ORDERED:

~
NELSON S. ROMAN
United States District Judge

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