McCane v. Wilkowski et al

Filing 140

ORDER memorializing the Court's rulings on 98 Motion in Limine; 100 Motion in Limine; 104 Motion in Limine; and 105 Motion in Limine. Signed by Hon. Elizabeth A. Wolford on 05/08/2024. (CDH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DAVID MCCANE,
Plaintiff,
ORDER
v.
1:18-CV-01489 EAW
CORRECTION OFFICER D. WILKOSWKI,
CORRECTION OFFICER MASUCCI, and
CORRECTION OFFICER T. BUNN,
in their individual capacities,
Defendants.
____________________________________
The following Order memorializes the rulings of the Court in connection with the
parties’ motions in limine. Although the Court initially indicated during the telephonic
conference on May 7, 2024, that it did not intend to issue a written Order confirming the
Court’s rulings, on further reflection it seems appropriate to do so. The reasoning for the
Court’s rulings is articulated on the record at the appearances on April 15, 2024, and May
7, 2024. In addition, the Court has allowed for further briefing on the admissibility of the
issues concerning Defendants’ discipline and the issues raised in defendant Wilkowski’s
filing at Docket 132, pages 7-12. Accordingly, certain issues remain outstanding and, like
all in limine rulings, they are subject to change. See Palmieri v. Defaria, 88 F.3d 136, 139
(2d Cir. 1996) (A motion in limine ruling “is subject to change when the case unfolds. . . .
Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise

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of sound judicial discretion, to alter a previous in limine ruling.” (quoting Luce v. United
States, 469 U.S. 38, 41-42 (1984)).
Subject to the above, the Court’s rulings to date have been as follows:
1.

Plaintiff’s Consent Motion for Remote Testimony & Electronic Devices by

David McCane (Dkt. 98): Granted for reasons discussed on the record on April 15, 2024.
2.

Defendant Masucci’s Motion in Limine (Dkt. 100):
A.

Granted request to preclude reference to New York State’s payment

of costs and attorneys’ fees in the defense of this lawsuit, and New York State’s potential
payment of any damages awarded to Plaintiff in this lawsuit in the event Plaintiff prevails,
subject to renewal of New York State’s potential indemnification during potential punitive
damages phase of trial.
B.

Granted in part and denied in part issues with respect to employment-

related discipline of Defendants concerning the incident in question. Specifically, as
indicated at the appearance on May 7, 2024, the Court will allow cross-examination
pursuant to Federal Rule of Evidence 608 of any sustained1 findings of untruthfulness on
the charges in the Notice of Discipline,2 and the Court will also allow testimony concerning

1

By “sustained” the Court is referencing the Opinion and Award of Arbitrator
Timothy S. Taylor, Esq., pertaining to Defendant Wilkowski dated January 28, 2019, and
the Opinion and Award of the Arbitrator Taylor pertaining to Defendant Masucci dated
January 30, 2019.
2

Based on Plaintiff’s requests as set forth in his filing at docket 126, this would
encompass the charges in paragraphs 3, 4, and 6 (A and B inclusive) of the Notice of
Discipline dated February 6, 2018, pertaining to Defendant Wilkowski, and charges 2 and
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the ultimate punishment imposed with respect to Defendant Masucci and Defendant
Wilkowski, but otherwise evidence and testimony concerning discipline related to this
incident will not be admitted. Specifically, Plaintiff has indicated that he seeks to introduce
into evidence the Notices of Discipline (see Dkt. 126-1; Dkt. 126-2) and the Office of
Special Investigations Report (see Dkt. 126-3), and the Court denies those requests,
primarily due to hearsay concerns and based on Federal Rule of Evidence 403, subject to
further briefing as indicated above.
3.

Defendant Masucci’s Motion in Limine (Dkt. 105): Granted in part and

denied in part, as indicated in paragraph 2(B) above.
4.

Defendant Wilkowski’s Motion in Limine (Dkt. 104):
A.

Granted in part and denied in part motion to admit evidence of

Plaintiff’s inmate disciplinary record for reasons stated on the record on April 15, 2024.
Specifically, the fact that Plaintiff had lost his recreational privileges on the date of the
incident is admissible, and Plaintiff may be cross-examined pursuant to Federal Rule of
Evidence 608 concerning the July 2017 falsification of records discipline and October 2016
smuggling discipline.
B.

Granted in part and denied in part motion to admit evidence of

Plaintiff’s prior criminal convictions pursuant to Federal Rule of Evidence 609, for reasons

4 (D only) of the Notice of Discipline dated February 6, 2018, pertaining to Defendant
Masucci. Consistent with Plaintiff’s position, no discipline will be introduced through
Rule 608 or otherwise pertaining to Defendant Bunn.
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stated on the record on April 15, 2024. Specifically, Plaintiff may be cross-examined on
the essential facts of conviction (i.e., the statutory name of the conviction, the date of
conviction, and the sentence imposed) for those convictions in February 2014 (violation of
Penal Law § 220.09(1)), September 2019 (violation of Penal Law § 220.09(1)), and January
2020 (violation of Penal Law § 220.16(1)).
C.

Granted in part and denied in part motion concerning discipline of

Defendants, as indicated in paragraph 2(B) above.
D.

Denied for reasons stated on the record on April 15, 2024, motion to

preclude in its entirety testimony of Plaintiff’s expert witnesses.
E.

Denied for reasons stated on the record on April 15, 2024, motion to

limit specific reference to monetary amount sought by Plaintiff in closing argument. The
Court will provide cautionary instructions before closing and as part of final instructions,
and Plaintiff’s counsel must disclose amount that will be referenced during charge
conference.
5.

Plaintiff’s Letter filed in Response to Pre-Trial Conference held April 15,

2024:
A.

Granted in part and denied in part requests to admit evidence

concerning discipline of Defendants Masucci and Wilkowski related to this incident, as
indicated in paragraph 2(B) above.
B.

Denied request to provide jury instruction concerning assault, for

reasons stated on the record on May 7, 2024.

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SO ORDERED.
___
_______________
_ ____________________
________________________________
ELIZABET
TH A. WOLFORD
WOLFORD
ELIZABETH
Chief Jud
dge
Judge
United States District Court
Dated:

May 8, 2024
Rochester, New York

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