Correa-Zayas v. Estrada-Febo et al
Filing
121
OMNIBUS OPINION AND ORDER granting in part and denying in part 108 Motion in Limine; granting in part and denying in part 109 Motion in Limine; granting in part and denying in part 110 Motion in Limine. Signed by US Magistrate Judge Silvia Carreno-Coll on 12/4/2018. (mcv) Modified on 12/5/2018 to edit title (ab).
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
JUAN E. CORREA-ZAYAS,
Plaintiff,
v.
CIV. NO.: 15-1585 (SCC)
LUISA MIRANDA-MENCHACA,
ET AL.
Defendants.
OMNIBUS OPINION AND ORDER
The parties have filed 3 motions in limine for the court’s
consideration at Docket Nos. 108, 109, and 110. Oppositions
thereto, at Docket Nos. 111 and 112. In summary, plaintiff
moves the court to exclude any evidence regarding the
injuries suffered by B.J. and the photographs depicting the
injuries; the report prepared by Dr. Osmar Rivera and his
testimony and any reference to the theory that it was
Boinayer, not BJ, who caused the injuries to plaintiff.
Defendants, in turn, move the Court to exclude any reference
Civ. No. 15-1585 (SCC)
Page 2 of 8
to the existence of an insurance policy and to exclude Mr.
Jaime Medina Rivera’s expert testimony.
I will rule on these requests seriatim:
(i)
The injuries suffered by BJ (Dkt. No. 110)
It is plaintiff’s contention that evidence relating to BJ’s
injuries should be excluded on two grounds. First that
defendants did not file a counterclaim for the damages
suffered by their dog; and second, that this evidence lacks
probative value. The Court disagrees. This evidence is not
presented in support to a claim for damages for injuries
sustained by BJ but rather to show the circumstances
surrounding the incident that gave rise to the complaint. The
Court thus finds that the evidence is relevant under Fed. R.
Evid. 401.
Now
we
turn
to
whether
the
photographs
are
inflammatory and should be excluded under Fed. R. Evid.
403 because their probative value is outweighed by the
danger of unfair prejudice. The Court finds that the
photographs depict the condition of the dog and are not
unduly prejudicial or gruesome. They do not depict BJ’s face
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in anguish or bleeding, but rather the extent of his injuries,
which in turn may be used by the trier of facts to make
inferences regarding the incident and the decisions taken by
the plaintiff on that day. Photos are admissible if helpful to
the trier of facts understanding of a fact of consequence in the
litigation. See Michael H. Graham, Handbook of Federal
Evidence § 401:7 (8th ed. 2018). However, the photographs
may not be shown during opening statement, since they are
not exhibits yet. They may be admitted only after the laying
of proper foundation and authentication. See Fed. R. Evid.
901.
(ii)
Dr. Osmar Rivera’s Report and Testimony
(Dkt. 110)
Dr. Rivera is not proferred as an expert, but rather as a
treating physician. His testimony has probative value
regarding the condition of BJ after the fight with Boinayer. He
may testify as to the treatment afforded and his impressions
of the condition of BJ while under his treatment. Dr. Rivera’s
Report on the other hand is hearsay. It does not fall under any
of the exceptions, since it is not a record kept within the Dr.’s
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regular course of business and it was written at Ms. MirandaMenchaca’s behest. See Fed. R. Evid. 803(6). It is, however, a
prior statement made by Dr. Rivera and may be used by either
party to refresh his recollection or to impeach him. See Fed.
R. Evid. 612 and 613.
(iii)
Defendants’ theory that Boinayer caused
plaintiff’s injuries (Dkt. 110)
Defendants have asserted, from the Answer to the
Complaint at Docket. No. 11, to the Proposed Pretrial at
Docket No. 106, that plaintiff’s injuries were the result of his
own doing by intervening between the dogs. The factual
pattern that led to plaintiff’s intervention, the intervention
itself and the events that followed are all in controversy and
for the trier of facts to decide. It is clear from the record that
plaintiff was injured during the intervention. Plaintiff posits
that it was BJ that injured him; while P.E.M. and José
Hernández Santana have stated that they don’t know.
Plaintiff’s request that defendants be precluded from
presenting this defense would strip the jury from making a
credibility assessment as to plaintiff’s testimony. If the jury
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fails to believe plaintiff’s version, then, the conclusion will be
that Boinayer bit him, since there were no other dogs involved
in the fight and nothing in the record suggests that plaintiff
could have been possibly injured in any other way.
Defendants may explore this defense and may mention it in
opening statement, with the caveat, that defendants may say
that it is their theory, but not a certainty. It will be a matter for
the trier of facts to decide based on credibility assessments
and inferences.
(iv)
The exclusion of the existence of insurance
coverage (Dkt. No. 108)
Defendants move the court for the exclusion of evidence
relating to the existence of an insurance policy issued by
Universal. Universal is a defendant in this case and was
impleaded as the issuer of a liability policy to codefendants
Miranda- Menchaca and López.
Since plaintiff expressed in its Omnibus Opposition at
Docket No. 111, that it would be amenable to a possible
stipulation on this issue, the Court invites the parties to
stipulate the matter. If the parties have not reached a
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stipulation by the beginning of trial, the Court will rule on the
same.
(v)
Jaime Medina Rivera’s Expert Testimony
(Dkt. No. 109)
Mr. Medina Rivera has been announced as an expert
witness on dog behavior. Defendant’s object to the inclusion
of his testimony on the basis that (1) he did not render an
opinion on the conduct of the dogs involved in the incident;
(2) he did not follow scientific methodology as to the
formulation of his expert opinion; (3) his opinions are not
relevant; and (4) his opinions do not assist the jury in
understanding the essential facts or the evidence in this case.
See Docket No. 109 at pg. 2.
The Court finds that Mr. Medina Rivera’s opinion is not
case-specific and that he did not follow a scientific
methodology in his expert report. However, his opinions may
be relevant and may assist the jury in its fact-finding mission
because of his general knowledge of canine behavior. “The
touchstone for the admission of expert testimony in federal
court litigation is Federal Rule of Evidence 702.” Crowe v.
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Page 7 of 8
Marchand, 506 F.3d 13, 17 (1st Cir.2007). The Advisory
Committee Notes to Rule 702 state, in pertinent part, that “the
text of Rule 702 expressly contemplates that an expert may be
qualified on the basis of experience.” 1 See also Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 156 (1999) (stating that "no one
denies that an expert might draw a conclusion from a set of
observations based on extensive and specialized experience.")
But if the expert is "relying solely or primarily on experience,
then the witness must explain how that experience leads to
the conclusion reached, why that experience is a sufficient
basis for the opinion, and how that experience is reliably
applied to the facts." Advisory Committee’s Notes on Fed. R.
Evid. 702.
Consequently, Mr. Medina Rivera may testify as to
general canine knowledge and behavior, but the Court will
The notes further state: “Nothing in this amendment is intended to
suggest that experience alone--or experience in conjunction with other
knowledge, skill, training or education--may not provide a sufficient
foundation for expert testimony.”
1
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permit defendants to conduct voir dire before his testimony to
define its scope and specific areas of expertise.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 4th day of December, 2018.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE
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