Uzhca et al v. Walmart Stores Inc. et al
Filing
204
OPINION & ORDER re: 169 MOTION in Limine to preclude testimony from Scott Haig. filed by Maria Smith, Luis Uzhca, 166 MOTION in Limine to Preclude Testimony of Plaintiffs' Alleged Medical Experts and for Other Relief . filed by Wal-mart Stores Inc., Sam's East Inc., 168 MOTION in Limine to preclude testimony from Christopher Ferrone. filed by Maria Smith, Luis Uzhca, 164 MOTION in Limine to Exclude Any Reference to Securemen t of the Load. filed by Wal-mart Stores Inc., Sam's East Inc., 167 MOTION in Limine Omnibus. filed by Maria Smith, Luis Uzhca, 195 MOTION for Sanctions . filed by Wal-mart Stores Inc., Sam's East Inc ., 165 MOTION in Limine to Preclude Plaintiffs from Offering Certain Evidence and for Related Relief. filed by Wal-mart Stores Inc., Sam's East Inc. For the foregoing reasons, the Court resolves the parties' motions a s follows: (1) Defendants' motion at ECF No. 164 is DENIED; (2) Defendants' motion at ECF No. 165 is GRANTED IN PART, DENIED IN PART; (3) Defendants' motion at ECF No. 166 is DENIED; (4) Plaintiffs' motion at ECF No. 167 is GRANT ED IN PART, DENIED IN PART; (5) Plaintiffs' motion at ECF No. 168 is GRANTED IN PART, DENIED IN PART; (6) Plaintiffs' motion at ECF No. 169 is GRANTED IN PART, DENIED IN PART; and (7) Defendants' motion at ECF No. 195 is GRANTED IN PA RT, DENIED IN PART. The parties are directed to appear in person before this Court for a pretrial conference on May 3, 2023 at 11:00 AM. The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 164, 165, 166, 167, 168, 169, and 195. ( Pretrial Conference set for 5/3/2023 at 11:00 AM before Judge Nelson Stephen Roman.) (Signed by Judge Nelson Stephen Roman on 3/15/2023) (ate)
Case 7:17-cv-03850-NSR Document 204 Filed 03/15/23 Page 1 of 27
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
3/15/2023
LUIS UZHCA and MARIA SMITH,
Plaintiffs,
-against-
17 Civ. 3850 (NSR)
OPINION & ORDER
WAL-MART STORES, INC., SAM’S EAST, INC.
and INLAND-GREENBURGH DELAWARE
BUSINESS TRUST,
Defendants.
NELSON S. ROMÁN, United States District Judge:
Plaintiffs Luis Uzhca (“Uzcha”) and Maria Smith (“Smith”) (collectively, “Plaintiffs”)
commenced this diversity personal injury action against Defendants Wal-Mart Stores, Inc.
(“Walmart”), Sam’s East, Inc. (“Sam’s East”), and Inland-Greenburgh Delaware Business Trust
(“IGDBT”) (collectively, “Defendants”) on May 22, 2017. (ECF No. 1.) A jury trial, originally
scheduled for October 12, 2022, has been adjourned sine die. (ECF No. 191.)
Presently before the Court are the parties’ motions in limine (ECF Nos. 164, 165, 166, 167,
168, 169) and Defendants’ motion for sanctions (ECF No. 195). The motions are resolved as
follows:
(1) Defendants’ motion at ECF No. 164 is DENIED;
(2) Defendants’ motion at ECF No. 165 is GRANTED IN PART, DENIED IN PART;
(3) Defendants’ motion at ECF No. 166 is DENIED;
(4) Plaintiffs’ motion at ECF No. 167 is GRANTED IN PART, DENIED IN PART;
(5) Plaintiffs’ motion at ECF No. 168 is GRANTED IN PART, DENIED IN PART;
(6) Plaintiffs’ motion at ECF No. 169 is GRANTED IN PART, DENIED IN PART; and
(7) Defendants’ motion at ECF No. 195 is GRANTED IN PART, DENIED IN PART.
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BACKGROUND
I. Facts
The following undisputed facts are drawn from the record.
A. Uzhca’s Accident
Uzhca was an employee of Sani-Pro Disposal Services Corp. and had been assigned to
work at the American Independent Paper Mills Supply Company, Inc. (“American Paper”), located
at 15 S. Depot Plaza, Tarrytown, New York. (Compl. ⁋ 14.) Sam’s East is the operator of the
Sam’s Club in Elmsford, New York (“Sam’s Club”), and Wal-Mart is, indirectly, the parent
company of Sam’s East. (Defs.’ Local Rule 56.1 Statement (“Defs. 56.1”), ECF No. 65, at n.3;
Compl. ⁋⁋ 11-12; Aff. of Patricia O’Connor (“O’Connor Aff.”), ECF No. 65-15, Ex. B at 1.)
While working at American Paper, Uzhca was responsible for getting truck cabs, securing
them to one of approximately 10 or 11 trailers parked onsite, and moving the chosen trailer to
within eight to ten feet of the loading dock. (Defs. 56.1 ⁋ 2; O’Connor Aff. Ex. D (“Uzhca Dep.
Tr.”) at 27:11-33:11, 52:10-19.) Once a trailer was about eight to ten feet away from the loading
dock, Uzhca would open its rear doors and then finish backing it into the loading dock. (Uzhca
Dep. Tr. at 34:6-35:6.) Uzhca had done this type of work approximately 40 to 50 times prior to
the date of his accident. (Defs. 56.1 ⁋ 2; Uzhca Dep. Tr. at 66:10-15.)
On May 29, 2015, at approximately 10:00 a.m., Uzhca’s supervisor, Winston Ash (“Ash”),
identified a trailer that he wanted Uzhca to move to the loading dock. (Defs. 56.1 ⁋ 3; Uzhca Dep.
Tr. at 36:3-19, 51:5-19.) The trailer, which is identified by the number 3263 (“Trailer 3263”)
contained bales of cardboard that had been delivered from Sam’s East. (Pl.’s Rule 56.1 Statement
(“Pl. 56.1”), ECF No. 66-15, ⁋⁋ 14, 21; O’Connor Aff. Ex. E (“Ash Dep. Tr.”) at 19:19-20:6,
36:25-38:4, 41:17-25; O’Connor Ex. H (“Kelly Dep. Tr.”) at 29:10-31:18, 33:17-34:6.)
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Upon receiving Ash’s instruction, Uzhca retrieved the truck cab and backed it into Trailer
3263, causing the two to physically connect. (Defs. 56.1 ⁋ 4; Uzhca Dep. Tr. at 53:4-54:22.) After
connecting the truck cab and the trailer, Uzhca got out of the cab to make sure the connection was
proper. (Defs. 56.1 ⁋ 5; Uzhca Dep. Tr. at 54:23-55:5.) Uzhca then lifted up the legs of the trailer
so that it could be moved. (Defs. 56.1 ⁋ 5; Uzhca Dep. Tr. at 55:22-56:11.) Thereafter, Uzhca
backed the trailer into a position approximately eight feet away from the loading dock. (Defs. 56.1
⁋ 6; Uzhca Dep. Tr. at 56:12-57:5.)
Uzhca again got out of the truck cab and proceeded toward the rear of the trailer. (Defs.
56.1 ⁋ 7; Uzhca Dep. Tr. at 57:19-25.) Uzhca first opened the right-hand door of the trailer and
secured it to prevent the door from closing. (Defs. 56.1 ⁋ 8; Uzhca Dep. Tr. at 60:3-61:7.) Upon
opening the right-hand door, Uzhca saw the contents of the truck—bales of cardboard weighing
between 600 to 900 pounds each. (Uzhca Dep. Tr. at 61:13-62:24, 63:11-19.) Uzhca testified that
he saw a bundle of cardboard “touching the top” of the left door, while the bottom bundles were
four inches from the door. (Defs. 56.1 ⁋ 10; Uzhca Dep. Tr. at 62:21-65:10.) But Uzhca also
testified that the contents of the trailer did not look any different than in the past, and that they
“always c[a]me[] like that.” (Uzhca Dep. at Tr. 62:25-63:5, 65:4-10.)
After opening and securing the right-hand door, Uzhca proceeded to unlock the left-hand
door of the trailer. (Id. at Tr. 67:6-10.) At that moment, the cardboard bales fell out of the trailer
and caused the left-hand door to swing open and strike Uzhca’s chest. (Defs. 56.1 ⁋ 11; Uzhca
Dep. Tr. at 67:11-68:2.) Uzhca was knocked to the ground and, after the first two bales fell, he
tried to drag himself out of the way. (Uzhca Dep. Tr. at 68:3-12.) As he was moving, the last bale
fell out of the trailer, causing Uzhca to lift out his right foot to prevent the bale from crushing him.
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(Defs. 56.1 ⁋ 12; Uzhca Dep. Tr. at 68:24-69:24.) The bale’s sheer weight ultimately crushed and
broke his foot. (Uzhca Dep. Tr. at 69:25-70:11.)
B. The Recyclable Cardboard Bale Loading and Transportation Process
i.
Sam’s East’s Loading of American Paper’s Trailers
On the date of Uzhca’s accident, Sam’s East was a customer of American Paper and would
use American Paper to move recyclable cardboard from Sam’s East’s Sam’s Club location in
Elmsford, New York to American Paper’s location in Tarrytown, New York. (Defs. 56.1 ⁋ 16;
Ash Dep. Tr. at 19:19-20:6, O’Connor Aff. Ex. F (“Javier Dep. Tr.”) at 22:19-25; O’Connor Aff.
Ex. G (“O’Neill Dep. Tr.”) at 38:6-39:3.) The process would begin with an American Paper driver
delivering an empty 53-foot trailer to Sam’s Club. (Defs. 56.1 ⁋ 17; see also O’Neill Dep. Tr. at
47:15-24, 52:23-54:8.) At Sam’s Club, the empty trailer would eventually be placed in bay seven
of the store’s loading dock (“Bay Seven”), which was next to Sam’s Club’s compactor. (Defs.
56.1 ⁋ 17; O’Neill Dep. Tr. at 67:2-17.)
Sam’s Club’s employees would compact cardboard boxes together into bales that were
approximately 36 inches high and five feet wide. (Defs. 56.1 ⁋ 17; Pl. 56.1 ⁋ 24, O’Neill Dep. Tr.
at 40:16-44:13.) The bales were then loaded onto the trailer using forklifts. (Defs. 56.1 ⁋ 17;
O’Neill Dep. Tr. at 54:13-55:3.) As Sam’s Club’s general manager, Robert O’Neill (“O’Neill”),
testified, each trailer was filled to capacity, in part because of cost but also because it created more
stability. (Pl. 56.1 ⁋ 25; O’Neill Dep. Tr. at 55:10-20, 68:8-69:3.) Ash corroborated this practice
during his deposition, noting that trailers were packed until full. (Defs. 56.1 ⁋ 20; Ash Dep. Tr. at
77:21-78:9; see also Aff. of Michael Kremins (“Kremins Aff.”), ECF No. 66-1, Ex. A (“Caminade
Dep. Tr.”) at 39:10-40:7, 54:4-21.)
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Sam’s Club’s employees would load bales onto the trailer from the front of the trailer to
the rear, stacking them three high and in one row. (Pl. 56.1 ⁋⁋ 4, 25, 28; O’Neill Dep. Tr. at 53:1955:3, 90:9-13, 103:5-20; Caminade Dep. Tr. at 69:15-73:15.) When fully stacked, the bales would
be within 12 inches of the trailer’s ceiling. (Defs. 56.1 ⁋ 21; Pl. 56.1 ⁋ 4; Ash Dep. Tr. at 99:699:17; Caminade Dep. Tr. at 71:21-72:13.) There would only be a limited amount of space on
either side of the stacked row, making it too small of a space for a person to access. (Pl. 56.1 ⁋ 28;
O’Neill Dep. Tr. at 119:18-120:512.) If the loaded materials were tilting in anyway, a forklift
operator would remove those bales and restack them in the trailer.1 (Defs. 56.1 ⁋ 23; Pl. 56.1 ⁋ 27;
O’Neill Dep. Tr. at 90:14-24; see also Caminade Dep. Tr. at 76:19-77:8.)
Walter Caminade, a former Sam’s Club employee whose duties included loading cardboard
bales into trailers, testified that Sam’s Club did not use any tying or tethering device or straps (also
known as low bars) to secure the cardboard bales. (Pl. 56.1 ⁋ 7; Caminade Dep. Tr. at 80:8-23.)
Caminade further testified that, when loading the bales on to the trailer, Sam’s Club did not use
anti-skid or anti-slipping sheets. (Pl. 56.1 ⁋ 10; Caminade Dep. Tr. at 104:16-105:11.) However,
in terms of securing the load, Plaintiff’s expert, Brooks Rugemer (“Rugemer”), testified that the
enclosed trailers—the kind into which Sam’s Club cardboard bales were loaded—did not require
the same level of securement as open flatbed trailers. (Defs. 56.1 ⁋ 32; Pl. 56.1 ⁋ 34; O’Connor
Aff. Ex. L (“Rugemer Dep. Tr.”) at 31:2-22.) More specifically, Rugemer testified that “cargo
that’s within an enclosed box trailer does not need additional load securement” because “freight
within a closed trailer that’s loaded next to freight and next to the walls is considered secure and
no other devices are required.” (Defs. 56.1 ⁋ 32; Rugemer Dep. Tr. at 57:4-58:6, 64:12-25.)
ii.
1
American Paper’s Transportation of Loaded Trailers
O’Neill visually inspected the loaded materials “[a] few times a day” by looking for whether “something was
either tilting or something as not straight” in the load. (O’Neill Dep. Tr. at 87:21-89:22.)
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Once a trailer was almost full, Sam’s Club would call American Paper to schedule a pickup.
(Defs. 56.1 ⁋ 17; Ash Dep. Tr. at 12:9-14; Javier Dep. Tr. at 12:11-18; O’Neill Dep. Tr. at 53:2554:4.) American Paper would, in turn, send a driver to bring another empty trailer to Sam’s Club.
(Defs. 56.1 ⁋ 18; O’Neill Dep. Tr. at 69:4-10.) The driver would unhook the empty trailer upon
arrival at Sam’s Club and then hook the truck cab to the full trailer at Bay Seven. (Defs. 56.1 ⁋ 18;
O’Neill Dep. Tr. at 69:24-70:6.) The driver would pull the full trailer about 60 to 80 feet away
from the loading docks—going over a storm water drain and with the trailer’s rear doors open—
and park it on the side of the building. (O’Neill Dep. Tr. at 71:14-72:6, 72:21-74:19, 76:18-24.)
After pulling out the trailer, the driver would inspect the load to make sure it was safe for
travel. (Defs. 56.1 ⁋ 18; Pl. 56.1 ⁋ 15; O’Connor Aff. Ex. H (“Kelly Dep. Tr.”) at 18:21-25, 36:1737:12) The driver did so because, while it was Sam’s Club’s responsibility to load the trailer
correctly and safely (Pl. 56.1 ⁋ 22; Ash Dep. Tr. at 91:16-18, 118:15-22), it was ultimately
“required by law” that American Paper’s driver make sure that the trailer was properly loaded and
safe to transport. (Defs. 56.1 ⁋ 30; Kelly Dep. Tr. at 37:9-12; Ash Dep. Tr. at 15:13-16:23, 91:1821.) As explained by Brian Kelly, a former American Paper driver who was responsible for
transporting Trailer 3263 on May 29, 2015, drivers were to make sure that the load was secure,
nothing was “hanging there,” and a safety bar was set in place. (Defs. 56.1 ⁋ 30; Pl. 56.1 ⁋⁋ 1415; Kelly Dep. Tr. at 19:17-25.) To this end, although he confirmed that the space inside the trailer
was too tight for a driver to climb or walk into, Kelly testified that drivers could at least evaluate
whether the bales “were even” and that “nothing was rocking.”2 (Pl. 56.1 ⁋⁋ 16-17; Kelly Dep.
Tr. at 71:10-73:9; see also Ash Dep. Tr. at 94:6-11, 120:10-12 (“The way to observe [the load] is
2
Typically, the trailer would have a horizontal bar—supplied by American Paper—locked in place in front of
the last row of bales to help secure the load. (Pl. 56.1 ⁋ 17, Kelly Dep. Tr. at 76:5-79:20.) At his deposition,
Kelly could not recall whether he strapped the bar prior to transporting Trailer 3263 on May 29, 2015.
(Pl. 56.1 ⁋ 17; Kelly Dep. Tr. at 106:6-9.)
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to check how far it is from the edge of the trailer, and to make sure that they’re stacked up and
down, or . . . straight.”)). If the cardboard bales were not properly loaded, the driver would not
take the load until it was fixed. (Defs. 56.1 ⁋ 29; Ash Dep. Tr. at 94:17-95:8.)
After the check was complete, the driver would close the trailer’s doors and drive to
American Paper. (Defs. 56.1 ⁋ 18; Kelly Dep. Tr. at 17:17-19:2.) The distance from Sam’s Club
to American Paper was approximately five miles and the drive would take 10 minutes. (Defs. 56.1
⁋ 18; Kelly Dep. Tr. at 107:13-18.) The drive required the cab and trailer to go down some hills.
(Defs. 56.1 ⁋ 18; Kelly Dep. Tr. at 107:24-108:4.)
iii.
Deponents Prior Experiences with Sam’s Club’s Bale Loads
Although none witnessed Uzhca’s accident, several individuals have testified regarding
their prior experiences with Sam’s Club’s cardboard bale loads. For example, O’Neill has testified
that, over the course of seeing approximately 50 American Paper trailers being pulled away from
Sam’s Club’s loading dock, he never observed any of the bales inside the trailers move. (Defs.
56.1 ⁋ 23; O’Neill Dep. Tr. at 76:4-78:7.) Similarly, Ash testified that he did not recall any issues
with Sam’s Club’s trailers, but noted that, if a driver saw an issue, he or she would report it and
Ash would, in turn, raise the issue with Sam’s Club. (Defs. 56.1 ⁋ 25; Ash Dep. Tr. at 89:6-17.)
And for his part, Kelly noted that he had never had a problem with Sam’s Club’s loading practices.
(Defs. 56.1 ⁋ 26; Kelly Dep. Tr. at 36:9-16.)
Conversely, Uzhca’s co-worker, Cesar Javier, recalled sometimes seeing trailers with bales
that were “not leveled,” “misleveled,” or “unstable.” (Javier Dep. Tr. at 66:20-25.) He further
explained, depending on who was driving or the conditions of the roads, “some of those bales
could be straight” but “sometimes they flip over” or are “on the side.” (Defs. 56.1 ⁋ 27; Javier
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Dep. Tr. at 67:10-15.) Nevertheless, Javier clarified that he ultimately did not know how the bales
got to be in this condition. (Javier Dep. Tr. at 67:16-24.)
C. Expert Opinions on Proper Bale Loading and Securing Practice
Rugemer has opined that Sam’s East is a shipper of cardboard bales that should have
followed the standards set by the Institute of Scrap Recycling Industries, Inc. (“ISRI”). (See
O’Connor Aff. Ex. K (“Rugemer Report”) at 3-6; Rugemer Dep. Tr. at 26:13-29:23.) Rugemer
further testified that, regardless of whether Sam’s East received a copy of the guidelines, the
guidelines were “easily researchable”, and it was incumbent on Sam’s East to “understand the
proper way to ship [] recycled bales.” (See Pl. 56.1 ⁋ 33; Rugemer Dep. Tr. at 29:2-23.) Of note,
Defendants’ expert, Christopher Ferrone (“Ferrone”), generally agreed with ISRI’s guidance.
(Pl. 56.1 ⁋ 39; Kremins Aff. Ex. F (“Ferrone Dep. Tr.”)3 at 279:13-19.)
According to ISRI’s safe shipping guidance, it is acceptable to stack three bales on top of
each other while loading a trailer, but this does not apply to the last row of bales next to the trailer’s
door. (O’Connor Ex. M at 6.) Instead, for this last row, “[b]ales MUST be no more than 2 high
and turned lengthwise with the length of the trailer.”4 (Id. at 8 (emphasis in original); see also
Rugemer Report at 4.) Drawing on these guidelines, Rugemer determined that, by loading the last
row of bales three high, “Sam[’]s Club failed to follow industry recognized best practices for safe
loading of cardboard bales into a truck trailer.” (Defs. 56.1 ⁋ 34; Pl. 56.1 ⁋ 35; Rugemer Report
at 6; Rugemer Dep. Tr. at 34:5-11.) Accordingly, Rugemer concluded, Defendants’ method of
loading cardboard bales created a “dangerous condition.” (Rugemer Report at 6.)
3
4
A complete transcript of the Deposition of Christopher Ferrone is attached as Exhibit B to the Reply Affidavit
of Patricia O’Connor. (ECF No. 68-2.)
Although Caminade appeared to agree that the ISRI guidance shown to him during his deposition contained
standards for safe shipping (Pl. 56.1 ⁋ 12), there is also indication from his testimony that he had not
previously seen the ISRI guidelines and/or was not aware of their applicability in or around May 2015. (See
Caminade Dep. Tr. at 102:10-23, 114:8-15.)
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In contrast, Ferrone opined that the bales were “placed properly” and that it was on the
“motor carrier” to ensure proper securement. (Ferrone Dep. Tr. at 301:9-20.) He further countered
that the loading method contemplated by ISRI’s guidance was simply “an option” that was not
needed if the bales had already been secured. (Id. at Tr. 241:24-242:10.) Rather, as he explains,
there are “different means” for placing and securing cargo. (Id. at Tr. 243:21-244:16.)
II. Summary Judgment Denied
By Opinion and Order dated September 14, 2020 (“September 14, 2020 Opinion”), this
Court denied Defendants’ motion for summary judgment. (ECF No. 71.) Specifically, the Court
(1) declined to preclude Rugemer’s report on bale loading and securing practice; (2) held that
whether Plaintiff should have been aware of an issue with the loading is a question of fact best left
to the jury; and (3) declined to hold that Plaintiff was the sole proximate cause for his injuries.
(Id.)
Following the Court’s denial of summary judgment, the parties proceeded to complete
discovery. A jury trial was scheduled for October 6, 2022, with an alternate date of October 11,
2022. (ECF No. 160.)
III. Adjournment Sine Die
On September 16, 2022, Plaintiff’s counsel stunned this Court by revealing—for the first
time and during a conference less than three weeks before trial—that Plaintiff sustained additional
injury in a motor vehicle accident on or about April 22, 2022 (“the April 2022 accident”).
Defendants’ counsel reported that they first learned of the April 2022 accident when Plaintiff’s
counsel sent a drop-box to Defendants’ law firm on September 9, 2022. (ECF No. 196.) The dropbox, according to Defendants, contained (1) Plaintiff’s medical records from Phelps Memorial
Hospital; (2) the Ambulance Call Report for the motor vehicle accident; (3) a HIPPA authorization
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addressed to Phelps Memorial Hospital; and (4) copies of an X-ray of Plaintiff’s lumbar spine and
CT of his cervical spine performed at Phelps Memorial Hospital in relation to the April 22, 2022
accident. (Id. at 7.)
Considering Plaintiff’s failure to timely disclose the April 2022 accident, which affects his
injuries, the Court determines that the parties were not ready to proceed to trial as originally
scheduled. (ECF No. 191.) The trial is accordingly adjourned sine die to allow time for additional
discovery. (Id.)
LEGAL STANDARD
“A district court’s inherent authority to manage the course of its trials encompasses the
right to rule on motions in limine.” Highland Cap. Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173,
176 (S.D.N.Y. 2008) (citing Luce v. United States, 469 U.S. 38, 41 n.4 (1984)). “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.” Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.
1996) (quotation omitted). Evidence challenged in a motion in limine “should only be precluded
when it is clearly inadmissible on all possible grounds.” S.E.C. v. Tourre, 950 F. Supp. 2d 666,
675 (S.D.N.Y. 2013) (quotation omitted). Nonetheless, “a court’s decision on the admissibility of
evidence on a motion in limine may be subject to change when the case unfolds . . . because the
actual evidence changes from that proffered by the movant.” Stoncor Grp., Inc. v. Peerless Ins.
Co., 573 F. Supp. 3d 913, 917–18 (S.D.N.Y. 2021) (citing Wilder v. World of Boxing LLC, 220 F.
Supp. 3d 473, 479 (S.D.N.Y. 2016)).
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DISCUSSION
I.
Securement of Load (ECF No. 164)
Defendants first seek to preclude any reference to the “securement” of the load, citing
Rugemer’s statement that enclosed trailers do not require additional securement devices. (ECF No.
164-A).
This Court has closely reviewed and considered Rugemer’s statement in denying
Defendants’ motion for summary judgment. To reiterate, a question of fact exists as to “whether
any purported defect [in the loaded bales’ condition] was readily apparent to Plaintiff.” (ECF No.
71.) The jury shall assess Rugemer’s report; it is up to the jury to decide how much weight to be
attributed to his testimony. The preclusion of “securement” fetters the jury in its understanding of
the bale’s condition, which will inevitably hinder the jury’s determination of the purported defect
question in dispute.
Accordingly, the Court will not preclude any reference to securement at this time.
II.
Defendants’ Wealth, Other Accidents Involving Defendants, and “Reptile Theory”
Tactics (ECF No. 165)
Defendants next seek to preclude testimony regarding (1) Defendants’—in particular,
Walmart’s—wealth of resources, which include size, financial status, and profits; (2) other
accidents, claims, and settlements involving Defendants; and (3) the use of the so-called “Reptile
Theory” tactics5. (ECF No. 165.) The Court addresses each in turn.
A. Defendants’ Wealth, Size, Financial Status, and Profits
As one court observed, the Reptile Theory tactic, deriving its name from a 2009 book on plaintiffs’ trial strategy in
tort cases, “consists of arguing that the appropriate measure of damages is not the amount of harm actually caused in
the case, but rather the maximum or cumulative harm that the defendant’s alleged conduct could have caused.”
Belvin v. Electchester Mgmt., LLC, No. 17 Civ. 6303(NGG)(MMH), 2022 WL 10586743, at *7 (E.D.N.Y. Oct. 18,
2022) (internal quotation omitted).
5
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Defendants’ motion to preclude testimony regarding Walmart’s wealth evinces their
concern that jurors will be biased toward finding liability as a result due to Walmart’s deep pocket.
Plaintiffs responded in its opposition that, while they “have no intention of referencing the size of
[Defendants] for purposes of claiming deep pockets” (Pl. Opp. at 4, n.1), Defendants’ wealth of
resources is demonstrative of their experience and knowledge of safety practice in cargo loading
and shipment, which is relevant and admissible.
Evidence of “the wealth of a party is never admissible, directly or otherwise, unless in
those exceptional cases, where position or wealth is necessarily involved in determining the
damages sustained.” Tesser v. Bd. of Educ. of City Sch. Dist. of City of New York, 370 F.3d 314,
318 (2d Cir. 2004) (internal citations omitted.) Nonetheless, evidence of wealth may “be admitted
to impeach the testimony of a witness who ‘open[s] the door’ to the subject.” Reilly v. Natwest
Mkts. Group Inc., 181 F.3d 253, 266 (2d Cir.1999) (internal citations omitted). To be admissible,
the wealth evidence “must actually be inconsistent with the witness’s testimony.” Id.
(citing United States v. Hale, 422 U.S. 171, 176 (1975)).
The case at bar is not “exceptional” within the meaning of Tesser, 370 F.3d 318-19.
Plaintiffs’ broad and elusive opposition, based upon speculations such as “[o]ne would expect
defendants to have far greater knowledge, experience and expertise . . . than a small mom and pop
bodega,” fails to identify any relevant ground upon which Defendants’ wealth, size, or financial
status becomes admissible. (Pl. Opp. at 4.)
Accordingly, the Court grants Defendants’ motion to preclude testimony regarding their
wealth of resources, including Defendants’ size, financial status, or profits. If Defendants’ wealth
becomes admissible for impeachment purposes during trial, Plaintiffs may move, at that point, for
such wealth evidence to be admitted.
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B. Other Dissimilar Accidents, Claims, and Settlement
Defendants moves to preclude other unrelated accidents, claims, and settlement testimony
proffered by Plaintiffs.
It is well settled that “[e]vidence of other accidents is admissible when the conditions
surrounding the other accidents are ‘substantially similar’ to the accident which is the subject of
the current litigation.” Bellinger v. Deere & Co., 881 F. Supp. 813, 817–18 (N.D.N.Y. 1995)
(citing Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1083 (5th Cir.1986); Bowen v.
Whitehall Labs., Inc., 41 F.R.D. 359 (S.D.N.Y.1966); Sawyer v. Dreis & Krump Mfg. Co., 67
N.Y.2d 328, 336 (1986); Hyde v. County of Rensselaer, 51 N.Y.2d 927, 929 (1980)
(prior accident evidence admissible only upon showing of “substantially the same” conditions)).
Plaintiffs are not permitted to introduce evidence of prior accidents, claims, and settlements
where the conditions are not substantially similar to that surrounding the instant case. To illustrate,
merchandises falling from racks in a retail location of Defendants is not a substantially similar
condition, and is thus not admissible. Neither are claims involving expired infant formula.
Accordingly, the Court grants Defendants’ motion to preclude unrelated accidents, claims,
and settlement that are not substantially similar to the instant case.
C. “General Safety Rule” and “Reptile Theory Tactic”
Defendants urge the Court to prohibit Plaintiffs’ alleged attempt to “establish a general
safety rule with which no rational person would disagree” through repetitive questioning.6
Defendants provided the following example of Plaintiffs’ questioning in their brief:
Q. Do we agree according to good and accepted practices and procedures a warehouse is
never allowed to unnecessarily
expose anyone to harm?
Q. Do we agree according to good and accepted practices and procedures a shipper is
never allowed to unnecessarily expose anyone to harm?
Q. I'm going to get into all that later. Right now I'm just asking nice, simple yes/no
questions.
6
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Defendants further request that the Court preclude Plaintiffs from employing the Reptile Theory
tactic.
A district court is entitled to give attorneys wide latitude in formulating their arguments,
Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 271 (2d Cir. 1999), and this Court declines to
set a categorical ban on any trial tactics, either reptilian or with respect to the general safety
standard. However, Plaintiffs’ counsel is sternly forewarned that the Court will not indulge
repetitive questions of marginal relevance at any point during trial.
Accordingly, the Court denies Defendants’ motion to prohibit Plaintiffs’ usage of
the Reptile Theory tactic and to preclude Plaintiff’s attempt at establishing an unobjectionable
general safety standard.
III.
Dr. Richard Radna, Dr. James Gallina and Plaintiff’s Cervical Fusion (ECF No. 166)
Defendants next move to preclude evidence and testimony by Dr. Richard Radna and Dr.
James Gallina that Uzcha’s cervical fusion was causally related to the May 29, 2015 accident.
(ECF No. 166.) The gist of Defendants’ argument is that Uzcha did not report any cervical injury
following the falling-bale accident in 2015, and that subsequent medical record does not establish
that Uzhca’s congenital cervical stenosis was traumatically induced. The Court disagrees.
As an initial matter, the Court reminds Defendants that the purpose of a motion in limine
is not to function as a belated motion for summary judgment.7 See Romanelli v. Long Island R.
Q. So the answer to my question was you agree, correct, that according to good and
accepted practices and procedures a shipper is never allowed to unnecessarily expose anyone to
harm, true?
Q. Do we agree according to the standards of care a shipper is never allowed to
unnecessarily expose anyone to harm?
(ECF No. 165-1.)
7
The Court shares, in earnest, our colleague’s sentiment: “I sometimes cannot believe the things that lawyers do.
This is not a motion in limine. It is a thinly –and not at all cleverly – disguised motion for summary judgment . . .” In
re Namenda Indirect Purchaser Antitrust Litig., No. 15 Civ. 6549(CMR)(WL), 2022 WL 3362429, at *2 (S.D.N.Y.
Aug. 15, 2022).
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Co., 898 F. Supp. 2d 626, 629 (S.D.N.Y. 2012) (“The purpose of a motion in limine is to allow a
court to rule on the admissibility of potential evidence in advance of trial.”) While Defendants’
instant motion purports to exclude Dr. Radna and Dr. Gallina on evidentiary bases, what
Defendants truly seek here is a summary denial of the triability of Defendants’ cervical condition,
which clearly should not have been made in limine at this point.
Second, Defendants fail to establish any valid bases upon which Dr. Richard Radna and
Dr. James Gallina should be excluded. Specifically, with respect to Dr. Radna, Defendants assert
that his conclusion on the cause of Uzcha’s cervical condition was too speculative and unsupported
by medical evidence.8 With respect to Dr. Gallina, Defendants aver that he was Uzcha’s treating
physician only as to the cervical condition which, according to Defendants, is a pre-existing
condition. These arguments lay bare a disputed issue of fact, namely, the scope of Uzcha’s injury.
(ECF No. 166-7.) This issue will be determined by the trier of facts.9
Accordingly, the Court denies Defendants’ motion to preclude Dr. Radna and Dr. Gallina
in relation to Plaintiff’s cervical fusion. Defendants’ request for a Daubert hearing “outside the
presence of the jury and [on the] theories of causal relationship between the accident and Plaintiff’s
cervical fusion” is also denied. (ECF No. 166-7.) Defendants’ motion to dismiss the related
damages claims is denied as well.
IV. Plaintiff’s Omnibus Motion (ECF No. 167)
Plaintiff moves to preclude (1) Defendants from offering an apology to the jury for
Plaintiffs’ injuries; (2) any evidence concerning Plaintiffs’ financial status; (3) the statement
“anyone can file a lawsuit”; (4) any statement or suggestion at trial that Plaintiffs filed this lawsuit
8
Without converting the instant opinion into one for summary judgment, the Court is of the view that this issue is
far from “clear and unequivocal,” as Defendants assert, based on a review of record. (ECF No. 166-7.)
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for the purpose of financial gain; (5) evidence of Uzcha’s marital or parental status; (6) opinion
evidence by lay witnesses; (7) Defendants from raising the “Affirmative Defense of Failure to
Mitigate”; (8) Defendants from offering an “Empty Chair” defense; (9) testimony concerning
Plaintiffs’ citizenship; (10) testimony concerning any prior convictions, arrests, and charges of
Plaintiffs, if any; and (11) statements by Defendants indicating that there were “no prior
accidents.”
This motion exemplifies petulance. The Court would like to advise Plaintiffs’ counsel of a
basic principle of our system of evidence: irrelevant evidence is not admissible. Fed. R. Evid. 402.
In addition, petulant motions, in Plaintiffs’ counsel’s own words, “degrades the American legal
process and the principles of justice and equity.” (Pl. Omnibus Mem. ¶ 18, ECF No. 167.) This
motion is decided as follows:
With respect to the apology, Defendants shall not apologize to the jury for Plaintiffs’
injuries. Yet the Court will not preclude Defendants from suggesting that “no party wishes an
accident to happen, or that someone would be injured.” (ECF No. 170.)
Plaintiffs’ financial status is precluded for the same reason as that of Defendants, which
has been discussed in Section II-A of this opinion.
The statement “anyone can file a lawsuit” is precluded as irrelevant.
The Court declines to set a categorical preclusion on statements to the effect that Plaintiffs
filed this lawsuit for the purpose of financial gain at this time. Similarly, the Court will not
categorically preclude evidence of Plaintiffs’ marital status, parental status, citizenship, collateral
source payments,10 prior convictions, arrests, and charges. Such evidence that is relevant to
The Court reminds Defendants that “[t]he burden is on the defendant to prove that a plaintiff's award should be
reduced by payments received from collateral sources.” LaMarca v. United States, 31 F. Supp. 2d 110, 132
(E.D.N.Y. 1998) (citing Damiano v. Exide Corp., 970 F.Supp. 222, 229 (S.D.N.Y.1997)).
10
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liability or damages may be admitted, and unduly prejudicial testimony will be stricken. Fed. R.
Evid. 404(b).
With respect to “opinion evidence by lay witnesses,” Plaintiffs seek to limit the testimony
of Winston Ash (“Mr. Ash”) and Brian Kelly (“Mr. Kelly”) about the activities of employees of
American Paper. Mr. Ash was Uzhca’s direct supervisor when the May 2015 accident took place.
Mr. Kelly was the driver who dropped off the empty trailer and picked up the loaded trailer on the
day of the accident. Mr. Ash and Mr. Kelly are slated to introduce testimony, based upon their
personal perceptions and experience, regarding their job responsibilities as employees of American
Paper. Such evidence, if in the form of an opinion, will be admitted as long as it is rationally based
on the witnesses’ personal knowledge and “helpful to a clear understanding of the witness’s
testimony.” New York ex rel. Spitzer v. Saint Francis Hosp., 94 F. Supp. 2d 423, 427 (S.D.N.Y.
2000) (citing Fed. R. Evid. 701; United States v. Rea, 958 F.2d 1206, 1215 (2d Cir.1992)). At this
time, the Court sees no basis to limit Mr. Ash and Mr. Kelly’s testimony. Plaintiffs may renew
their motion to preclude during trial if Mr. Ash or Mr. Kelly improperly proffers opinion testimony
based on specialized knowledge within the scope of Fed. R. Evid. 702.
With respect to the affirmative defense of failure to mitigate, Plaintiffs chiefly contend that
Defendants are required by law to prove failure to mitigate through expert testimony, and that
Defendants fail to proffer such expert witnesses. Plaintiffs misstate the law. While the burden
indeed falls on Defendants to prove failure to mitigate, see, e.g., LaMarca v. United States, 31 F.
Supp. 2d 110, 131 (E.D.N.Y. 1998), there is no requirement that the proof must be provided
through expert testimony. As such, Defendants are permitted to raise the affirmative defense of
failure to mitigate.
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With respect to the “Empty Chair” defense, Plaintiffs appear to assert that Defendants
should not be permitted to attribute liability to American Paper, a nonparty. For the same reason
stated in Section II-C, the Court declines to preclude Defendants from invoking such trial tactics.
Lastly, Plaintiffs provide no persuasive bases for the Court to preclude evidence of the
absence of prior accidents, which is “generally admissible on the issues of notice and
foreseeability.” Melini v. 71st Lexington Corp., No. 7 Civ. 701 (JCF), 2009 WL 1905032, at *4
(S.D.N.Y. July 2, 2009) (citing McDonough v. Celebrity Cruises, Inc., 64 F.Supp.2d 259, 265
(S.D.N.Y.1999); Orlick v. Granit Hotel and Country Club, 30 N.Y.2d 246, 248–50 (1972)).
Accordingly, such evidence will be admitted if relevant, unless the Court determines, during trial,
that the proffer evidence is unduly prejudicial under Fed. R. Evid. 404(b).
Accordingly, the Court grants Plaintiffs’ omnibus motion only to the extent expressly set
forth above.
V. Christopher Ferrone (ECF No. 168)
Christopher Ferrone (“Mr. Ferrone”), Defendants’ expert witness, is expected to testify in
person that (1) “the ISRI guideline found on the internet by Plaintiffs’ expert is not a recognized
industry standard and it was the responsibility of American Paper, the carrier, not [Sam’s East],
the shipper, to ensure the safety of the load”; and (2) “the Savage rule11 applies here and that the
standard is an objective, not a subjective one.” (Parties’ Joint Pretrial Order at 11, ECF No. 163.)
Plaintiffs seek to preclude Mr. Ferrone on the following four bases: alleged failure to fully
comply with the requirements of Fed. R. Civ. P. 26(a)(2)(B) during discovery; lack of
The Savage rule refers to the Fourth Circuit’s holding in United States v. Savage Truck Line, Inc. that, while “[t]he
primary duty as to the safe loading of property is [ ] upon the carrier, [w]hen the shipper assumes the responsibility of
loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be
discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will
be liable notwithstanding the negligence of the shipper.” Uzhca v. Wal-Mart Stores, Inc., No. 17-CV-3850 (NSR),
2020 WL 5518591, at *8–9 (S.D.N.Y. Sept. 14, 2020) (citing Savage Truck Line, Inc, 209 F.2d 442, 445 (4th Cir.
1953)).
11
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qualifications as an expert witness on loading, placing, and securing cargo; lack of qualification as
an accident reconstructionist; and lack of proper methodology.
Plaintiffs further seek to limit Mr. Ferrone’s testimony in two aspects, averring that: first,
Mr. Ferrone is not permitted to testify to the meaning, intent, applicability, and the alleged nondelegable nature of regulations prescribed by the Federal Motor Carrier Safety Administration
(FMCSA), a federal agency of the Department of Transportation (DOT); and second, Mr. Ferrone
is not permitted to opine on other witnesses’ credibility. The Court address each of Plaintiffs’
arguments in turn.
With respect to the Fed. R. Civ. P. 26(a)(2)(B) requirements, this Court had made
abundantly clear—in multiple pretrial conferences—that all discovery issues must be resolved
before the presiding Magistrate Judge. Discovery is now closed. As such, the Court will not
entertain the instant motion on the basis of Fed. R. Civ. P. 26(a)(2)(B).
With respect to Mr. Ferrone’s qualifications as an expert witness, the Court, having
reviewed Mr. Ferrone’s CV (ECF No. 168-C), concludes that Mr. Ferrone “qualifie[s] as an expert
by knowledge, skill, experience, training, or education” for his proposed testimony regarding the
ISRI guideline. Fed. R. Evid. 702. Mr. Ferrone has decades of industry experience involving heavy
trucks, which includes the scrap recycling industries. Mr. Ferrone’s extensive knowledge of
industry practice may “assist the trier of fact” in weighing the ISRI guideline and its acceptance
by the industry. Fed. R. Evid. 702. A specialized focus of expertise on “loading, placing, and
securing cargo,” as Plaintiffs assert, is not necessary.
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The Court is further of the view that Mr. Ferrone is qualified as an expert on accident
reconstruction, as Mr. Ferrone’s CV indicates a substantial number of publications12 and
professional presentations13 on accident reconstruction. It is undisputed, however, that Mr.
Ferrone did not conduct a reconstruction of Uzhca’s May 2015 accident. As such, Mr. Ferrone is
not permitted to base any of his testimony regarding the underlying accident on or in relation to
accident reconstruction. Cf. Fed. R. Evid. 702.; Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 597 (1993) (holding that the proposed expert testimony must be based “on a reliable
foundation” grounded on “sufficient facts or data”).
With respect to the FMCSA regulations, the Court agrees that “an expert should not be
permitted to express an opinion that is merely an interpretation of federal statutes or regulations,
as that is the sole province of the Court.” DeGregorio v. Metro-N. R. Co., No. 5 Civ. 533 (JGM),
2006 WL 3462554, at *3 (D. Conn. Nov. 1, 2006) (citing United States v. Scop, 846 F.2d 135,
140–42 (2d Cir.1988)). Thus, Mr. Ferrone is not permitted to testify to the meaning, intent, or
applicability of any FMCSA regulations or other federal regulations. Mr. Ferrone is also not
permitted to testify on the applicability of the Savage rule. Mr. Ferrone is further not permitted to
offer his opinion on whether such regulations are delegable. In addition, Mr. Ferrone may not
state to the jury, in any form, whether a regulation was violated. However, while Mr. Ferrone is
not allowed to draw any legal conclusions in his testimony, he is permitted to reference the relevant
federal regulations if his testimony is based on such regulations in addition to his industry
experience.
See, for example, Goebelbeacker, J.M., Ferrone, C.W., “Utilizing Electronic Control Module Data in Accident
Reconstruction,” S.A.E. Paper 2000-01-0466, March, 2000; “Accident Reconstruction: Analysis, Simulation and
Visualization.” (SP-1491). (Ferrone’s CV at 16, ECF No. 168, Exhibit C.) See also Ferrone’s CV at 21, ¶ 99.
13
See, for example, Ferrone’s CV at 30, ¶ 27a; at 31, ¶ 45a; at 33, ¶ 67-68; at 34, ¶ 78; at 35, ¶ 87; at 36, ¶ 96.
12
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With respect to Mr. Ferrone’s testimony “criticizing other witnesses’ credibility” (ECF No.
168), Plaintiffs are referring to Mr. Ferrone’s statements regarding one of Plaintiffs’ witnesses’
knowledge of the FMCSA rules. Specifically, Plaintiffs’ counsel and Mr. Ferrone made the
following statements in an apparently heated exchange during deposition:
Q: Okay. So the bottom line is you can’t be a little pregnant. It’s one or
the other. Either [Mr. Walter Caminade14, in his former capacity as one of
Sam’s Club employees] can walk away knowing it’s not – that they loaded
it, placed it and it’s not properly secured and that could unnecessarily harm
someone and they could walk away or not. Which is it?
A: The reason that I can’t answer that is it’s a nonanswerable –
Q: If you can’t, just say you can’t answer it. I don’t need to know the
reason. You can’t answer it, you can’t answer it. That’s all I need to know.
A: I am not done yet.
Q: That’s it. Either you agree, you disagree or you can’t answer it. Those
are the possibilities.
A: There’s a third possibility. Your question is incomplete. That
assumes that they don’t realize that the next step is securement. They
are sophisticated shippers. They know that the next step after
placement and loading and whatever terms you use, they are aware as
sophisticated shippers that the next step out of the three that you love
According to the parties’ joint pretrial order, Mr. Walter Caminade, a former employee of Sam’s Club, is expected
to testify “as to the duties of Defendants to ensure that the bales of recycled cardboard were properly loaded, placed,
and secured; that Defendants packed trailers to the ceiling in order to maximize their profits; that Defendants herein
failed to comply with their own good and accepted practices/standards of care, proximately causing this incident.”
(ECF No. 163.)
14
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to wave your fingers at me the next step is securement. They also know
that that’s the motor carrier’s responsibility.
Q: So you are reading their state of mind there. You are entering their state
of mind. Is that what you are doing?
A: Let me just tell you how this works.
Q: No, I don’t need to know how it works. The way it works is ask
questions. You answer my questions instead of giving the speeches you
want to give. That’s the way it works. I move to strike that again.
(Ferrone Tr. at 225-227.) The parley speaks for itself.
This part of the motion is resolved as follows: During trial, Mr. Ferrone is permitted to
testify to the industry practice based on his knowledge and experience, or, stated differently, how
things work. Mr. Ferrone is not permitted to speculate as to other witnesses’ state of mind.
Plaintiffs’ counsel is strongly encouraged to deliver his questions in a civil and courteous manner.
Accordingly, the Court grants Plaintiffs’ motion to limit Mr. Ferrone’s testimony only to
the extent expressly set forth above. Plaintiffs’ request for a Daubert hearing is denied.
VI. Dr. Scott V. Haig (ECF No. 169)
Scott V. Haig, M.D. (“Dr. Haig”), Defendants’ expert witness, is expected to testify that
(1) only Uzhca’s right ankle fracture is causally related to the May 2015 accident; and (2) Uzcha
“refused active ranges of motion” when examined by Dr. Haig on March 21, 2019. (ECF No. 163.)
Plaintiffs move to limit Dr. Haig’s testimony. A painstaking review of Plaintiffs’ liberally
written and loosely organized briefs reveals a principal grievance that Dr. Haig is allegedly biased
against Uzcha, questioning his “motivation” and referring to him as a “malingerer.” (Pl. Mem. at
3, ECF No. 169.)
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This motion is resolved as follows: Dr. Haig is not permitted to state that Uzhca was
“malingering” or that Uzhca was a “malingerer.” Dr. Haig is also not permitted to testify to
Uzhca’s state of mind. However, Dr. Haig is permitted to testify to any factual occurrence based
on his personal observation. Specifically, Dr. Haig is permitted to give testimony regarding any
movements that Uzhca made, as well as those that Uzcha refused to make, during the physical
examination at issue. Dr. Haig is further permitted, as an orthopedic surgeon and a qualified expert
witness, to give opinion testimony within a reasonable degree of medical certainty, as to whether
his examination of Uzcha revealed inconsistencies between Uzhca’s subjective reports of
symptoms and the objective impairment as determined by Dr. Haig.
Accordingly, the Court grants Plaintiffs’ motion to limit Dr. Haig’s testimony only to the
extent expressly set forth above. Plaintiffs’ request for a Daubert hearing is denied.
VII. Plaintiffs’ Post-2019 Medical Record (ECF No. 195)
This motion arises from Uzhca’s astonishing disclosure of his April 2022 accident during
the September 16, 2022 pretrial conference. Defendants presently moved under Fed. R. Civ. P. 37
(“Rule 37”), seeking: (1) to preclude Dr. Radna from offering any testimony at the time of trial
with respect to facts and opinions presented in his August 15, 2022 Supplemental Report 15; (2) to
preclude Uzcha from claiming that he cannot work as a delivery driver based on Dr. Radna’s recent
examination; (3) to preclude any of the diagnostic films mentioned or reviewed in Dr. Radna’s
Supplemental Report including, but not limited to the serial stereo-3D sagittal views of the cervical
spine taken on March 19, 2019; (4) to preclude the most recent office clinic note of Dr. Daniel
Zelazny or any testimony from Dr. Zelazny or others regarding its contents; (5) to preclude
Uzcha’s physician, Dr. Darren Friedman, from offering any testimony at the time of trial with
Defendants submit that such testimony includes, but is not limited to, Dr. Radna’s opinion regarding his recent
examination of Uzcha and his opinions regarding causation of Uzcha’s injuries.
15
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respect to facts and opinions presented in his “updated Narrative Report;” (6) to preclude Dr.
Darren Friedman’s notes of August 4, 2022 and September 1, 2022 or any testimony from Dr.
Friedman or others regarding their contents; (7) to preclude the “updated Narrative Report” of Dr.
Landis Barnes; (8) to preclude the August 3, 2022 and August 31, 2022 notes of Dr. Landis Barnes
or any testimony from Dr. Barnes or others regarding its contents; and (9) reasonable expenses
incurred by Defendants in making the instant motion, including attorneys’ fees.
Plaintiffs submit that “[i]f Defendants wish that Plaintiff not testify or introduce evidence
concerning the recent incident, Plaintiff is [sic] consents, as there is nothing to discuss.” (Pl. Opp.
¶ 8, ECF No. 198.) Nonetheless, Plaintiffs object to the preclusion of Dr. Radna’s 2019 report,
which Plaintiffs argue was first served in 2019, and was then “re-served prophylactically in 2022.”
(Id. ¶ 9.)
Rule 37(b)(2) provides that when a party “fails to obey an order to provide or permit
discovery, the court . . . may issue further just orders,” which include “prohibiting the disobedient
party from supporting or opposing designated claims or defenses, or from introducing designated
matters in evidence”; “striking pleadings in whole or in part”; or “rendering a default judgment
against the disobedient party[.]” Fed. R. Civ. P. 37(b)(2)(A). The Court has “wide discretion in
imposing sanctions under Rule 37[.]” S.E. New England Tel. Co. v. Global NAPs, Inc., 624 F.3d
123, 144 (2d Cir. 2010) (internal quotation and citation omitted). The Court considers the
following factors when exercising its discretion to impose sanctions: “(1) the willfulness of the
non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the
duration of the period of noncompliance, and (4) whether the non-compliant party had been warned
of the consequences of noncompliance.” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302
(2d Cir. 2009) (internal quotation and citation omitted). In addition, “the court must order the
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disobedient party ... to pay the reasonable expenses, including attorney’s fees, caused by the
failure, unless the failure was substantially justified, or other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C); see also Fed. R. Civ. P. 16(f)(2).
This motion is resolved as follows:
Any materials produced or served by Plaintiffs after August 1, 2022—in blatant violation of
this Court’s order during the January 6, 2022 conference—is strictly precluded. Such precluded
materials include all items disclosed in Plaintiffs’ September 6, 2022 and September 19, 2022
communications with Defendants.
Regarding Dr. Radna’s report, only the version based on his examination of Uzhca on March
18, 2019 is admissible. The “supplemental” version that was “prophylactically re-served” in 2022
is strictly precluded. In addition, Dr. Radna is not permitted to offer any testimony with respect to
any examination of Uzcha, or any review of Uzcha’s medical record, after March 18, 2019. Any
testimony concerning Dr. Radna’s examination of Uzcha on August 15, 2022 is inadmissible. With
respect to the diagnostic films mentioned or reviewed in Dr. Radna’s August 15, 2022 report,
which include the serial stereo-3D sagittal views of the cervical spine taken on March 19, 2019,
such materials are admissible only to the extent that they were already mentioned or reviewed in
Dr. Radna’s March 2019 report.
The Court further grants the following reliefs without objection from Plaintiffs:
Dr. Daniel Zelazny’s notes based on his August 11, 2022 examination of Uzcha are
precluded. Any testimony from Dr. Zelazny or others regarding the contents of such notes is also
precluded.
Dr. Darren Friedman is precluded from offering any testimony concerning facts and opinions
presented in his “updated Narrative Report” based on his August 2022 examination of Uzcha.
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Dr. Darren Friedman’s notes of his examination of Uzcha on August 4, 2022 and September
1, 2022 are precluded. Any testimony from Dr. Friedman or others regarding the contents of such
notes is also precluded.
Dr. Landis Barnes, whom Uzcha first saw on August 3, 2022, is precluded from testifying at
this trial. Any medical record produced by Dr. Barnes is also precluded.
Uzcha is not permitted to claim that he cannot work as a delivery driver if such claims are
based on Dr. Radna’s examination of Uzcha any time after March 2019. Defendants are permitted
to introduce evidence that Uzcha was driving when he was involved in a vehicle collision in April
2022.
Accordingly, the Court grants Defendants’ motion to the extent set forth above. Defendants’
request for expenses and fees is denied.
CONCLUSION
For the foregoing reasons, the Court resolves the parties’ motions as follows:
(1) Defendants’ motion at ECF No. 164 is DENIED;
(2) Defendants’ motion at ECF No. 165 is GRANTED IN PART, DENIED IN PART;
(3) Defendants’ motion at ECF No. 166 is DENIED;
(4) Plaintiffs’ motion at ECF No. 167 is GRANTED IN PART, DENIED IN PART;
(5) Plaintiffs’ motion at ECF No. 168 is GRANTED IN PART, DENIED IN PART;
(6) Plaintiffs’ motion at ECF No. 169 is GRANTED IN PART, DENIED IN PART; and
(7) Defendants’ motion at ECF No. 195 is GRANTED IN PART, DENIED IN PART.
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The parties are directed to appear in person before this Court for a pretrial conference on
May 3, 2023 at 11:00AM.
The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 164, 165,
166, 167, 168, 169, and 195.
Dated:
March 15, 2023
White Plains, New York
SO ORDERED:
________________________________
NELSON S. ROMÁN
United States District Judge
27
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