brandon marshall limine motion
DESCRIPTION
Motion from lawyers for Brandon Marshall to exclude certain things, like his borderline personality disorder diagnosis, from his civil trial.TRANSCRIPT
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Christin Ambrocia Myles, ) ) Plaintiff, ) ) vs. ) ) Brandon Marshall, ) ) Defendant. )
13 Civ. 8096 (GBD)(RLE)
Defendants Combined Motions in Limine
COMES NOW Springer & Steinberg, P.C. on behalf of Defendant Brandon
Marshall, who submits the following Motions in Limine to preclude certain evidence
at trial.
CONFERRAL
On December 21, 2015, the undersigned sent an email to Plaintiff outlining
each proposed motion and a general basis for each motion. Plaintiff did not respond.
On December 29, 2015, a draft of this motion was sent to Plaintiff for her review prior
to filing (including unpublished case law cited within). Plaintiff has not responded
as of the date of this motion. Counsel for Defendant assumes the relief is opposed.
PROCEDURAL BACKGROUND
Trial is set for 5 days beginning February 22, 2016. A telephonic pre-trial
conference is set for January 26, 2016.
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This case arises from an incident that took place on March 12, 2012 outside a
New York nightclub called the Marque. Plaintiff was hit in the eye during an
altercation she instigated. She claims that Defendant hit her. Defendant denies he
hit her. Plaintiff brings claims for assault, battery, negligent infliction of emotional
distress, and intentional infliction of emotional distress. The issues at trial are
whether Defendant was the person who hit Plaintiff, and, if a jury were to find he
did, what are her damages. The parties have stipulated to the introduction of a
security video partially showing the incident and to certain photographs.
In the Proposed Joint Pretrial Order, Plaintiff has identified the following
exhibits she intends to offer: a voicemail, images from the security video with
markings she put on the images, and medical records. Defendant objects to the
introduction of these exhibits. Defendant further objects to the introduction of the
following evidence that Plaintiff has indicated she intends to submit:
Evidence that Defendant has been diagnosed with a personality disorder;
Evidence related to prior arrests and actions taken by the NFL;
Evidence of costs and expenses related to prosecuting this lawsuit;
Evidence of costs and expenses to relocate to California, allegedly due to media attention from this incident;
Evidence she may suffer from future medical problems and requires future medical treatment and damages related thereto;
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Plaintiff has not disclosed any medical experts, expert reports, or listed any
witness qualified to testify about any medical issues. Attached as Exhibit A, is a copy
of Plaintiff’s disclosure pleading.
MOTIONS IN LIMINE Motions in limine enable the Court to rule on disputes over the admissibility
of discrete items of evidence. See TVT Records v. Island Def Jam Music Group, 250
F.Supp.2d 341, 344 (S.D.N.Y. 2003). See also Fed.R.Evid. 104 (“The court must decide
any preliminary question about whether a witness is qualified, a privilege exists, or
evidence is admissible.”). Such rulings “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) (internal quotation marks
and citation omitted). “Evidence should be excluded on a motion in limine only when
the evidence is clearly inadmissible on all potential grounds.” United States v.
Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001). Courts may reserve judgment
until trial or change rulings as the case unfolds. See id.
To be admissible, evidence must be relevant. Fed R. Evid. 402. Federal Rule
of Evidence 401 provides that evidence is relevant if “(a) it has any tendency to make
a fact more or less probable than it would be without the evidence; and (b) the fact is
of consequence in determining the action.” Fed R. Evid. 401. Furthermore, relevant
evidence may still be excluded if the probative value of the evidence is substantially
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outweighed by any potential for “unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403.
Evidence related to a person’s character is also excluded under certain
circumstances. “Evidence of a person's character or character trait is not admissible
to prove that on a particular occasion the person acted in accordance with the
character or trait.” Fed. R. Evid. 404(a). Evidence of prior acts cannot be admitted if
offered “to prove a person's character in order to show that on a particular occasion
the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1); see also
Lewis v. Velez, 149 F.R.D. 474, 479 (S.D.N.Y. 1993) (citing United States v. Whalen,
940 F.2d 1027, 1034 (7th Cir.)) for the proposition that in assault cases, evidence of a
prior assault is not relevant except to show propensity for violence and must therefore
be excluded) (a copy of this case is attached here as Exhibit B). Although prior “bad
acts” may be offered for other purposes, such purposes must be at issue. See Lewis,
149 F.R.D. at 479. Specific criminal convictions are also inadmissible unless offered
to attack a witness’s truthfulness and otherwise meets the requirements of Federal
Rule of Evidence 609. See Fed. R. Evid. 609.
Certain matters require expert testimony offered pursuant to Federal Rule of
Evidence 702. See Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2nd Cir. 2004)
(expert testimony may be required to establish the nexus between the injury and the
alleged cause if such nexus would not be obvious to the lay juror.) Although opinions
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may be offered by lay persons, such opinions must have the proper foundation. See
Fed. R. Evid. 701 (“If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is: (a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact
in issue; and (c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.”); see also United States v. Garcia, 413 F.3d 201 (2nd
Cir. 2005) (examining each foundational element for admission of lay opinions.)
Hearsay is not admissible to prove the truth of the matter asserted in the
statement, unless otherwise excepted such as pursuant to Federal Rule of Evidence
803. See Fed. R. Evid. 802. Hearsay “means a statement that: (1) the declarant does
not make while testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid.
802(c).1
Documents offered into evidence must be authenticated. See Fed. R. Evid.
901(a) (“To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that
the item is what the proponent claims it is.”); see also United States v. Vayner, 769
F.3d 125, 129 (2nd Cir. 2014) (noting that authentication is a condition precedent to
1 Certain statements are not defined as “hearsay,” such as statements by a party-opponent.
See Fed. R. Evid. 801(d)(2).
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admitting evidence.) Although the bar is not high, there must be sufficient proof that
a reasonable juror could find in favor of authenticity. See Vayner, 769 F.3d at 130.
As set forth below, and pursuant to the Rules noted above, the challenged
evidence is inadmissible and should be excluded at trial.
I. Motion in Limine to exclude evidence of Defendant’s borderline personality disorder. Plaintiff may seek to introduce evidence of Defendant’s borderline personality
disorder.2 This evidence should be excluded as irrelevant pursuant to Federal Rule
of Evidence 402 because the Defendant’s mental health generally does not make it
more or less likely that he punched Plaintiff. Furthermore, if admitted, there is a
significant possibility of confusion by the jury and prejudice to Defendant. See Fed.
R. Evid. 403. The jury could conclude (as Plaintiff mistakenly has) that Defendant’s
personality disorder leads to violence.
Furthermore, such evidence should be excluded as improper evidence of a
character trait if offered to prove that Defendant’s specific condition causes violent
behavior and did so on this particular instance. See Fed. R. Evid. 404(b).
Additionally, even if such evidence was not excluded for the reasons set forth
above, the evidence should be excluded because it would require an expert to testify
to about the condition, how it manifests itself, and that it can cause a person to act
violently. Fed. R. Evid. 702. Finally, there is not and will not be any admissible
2 Defendant does not deny that he has been diagnosed with a borderline personality disorder
and that information is public knowledge.
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evidence that Defendant’s specific personality disorder would cause him to strike
Plaintiff. There is no evidence whatsoever that Defendant’s personality disorder
makes Defendant violent; thus, there are no permissible purposes for introducing
such evidence, and it should be excluded.
II. Motion in Limine to exclude evidence of Defendant’s prior arrests, and violations of NFL codes of conduct.
Plaintiff may seek to introduce evidence of Defendants prior arrests and one
conviction. He was charged with and convicted of Driving While Ability Impaired.
He was arrested for but never convicted of assault-domestic violence. The NFL
imposed sanctions for his DWAI conviction.
Such evidence is irrelevant and if admitted would be highly prejudicial. Those
events took place under completely different circumstances have nothing to do with
this particular incident. It is also inadmissible character evidence to show that
because Defendant was arrested in the past and disciplined for allegedly assaultive
behavior, he acted violently in this situation. Fed. R. Evid. 404(b). Furthermore,
evidence of misdemeanor arrests are generally not admissible. Nibbs v. Goulart, 822
F. Supp. 2d 339, 344, 349 (S.D.N.Y. 2011) (holding that a plaintiff’s arrest history and
history of violations in a § 1983 case was irrelevant to any purpose permissible under
FRE 404(b), had no value as impeachment material, and because there is a higher
risk of prejudice when there is a similarity between the prior conduct and alleged
conduct at issue, and also excluding evidence of the disciplinary history of police
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officers). None of the alleged arrests relate to or are probative of Defendant’s
truthfulness either. See Fed. R. Evid. 609.
III. Motion in Limine to exclude evidence related to any treatment or care provided to Defendant while he participated in NFL mandated programs related to the foregoing incidents. Plaintiff may seek to introduce evidence related to care that was provided to
Defendant while he was participating in NFL-mandated programs arising from the
issues referenced above. Specifically, Plaintiff may seek to elicit testimony related to
treatment provided by Dr. Kennedy, Dr. Hickman, and Dr. McBride.3
For the same reasons set forth in Motion II above, any information related to
arrests or sanctions that are inadmissible means that any treatment related to those
events must necessarily be inadmissible because it would evidence of events whose
occurrence is inadmissible. Furthermore, as noted above, Plaintiff cannot introduce
any evidence that such treatment has any relevance to the specific incident alleged,
she has no personal knowledge of the treatment, and everything that occurred during
those sessions is privileged and hearsay. No exceptions to the hearsay rule exist that
would permit her to introduce evidence related to statements made by the treatment
providers.
3 No information has been provided or disclosed by Plaintiff with respect to these doctors and
they are not listed as witnesses.
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IV. Motion in Limine to exclude Plaintiff’s medical records and bills. Plaintiff has disclosed unauthenticated medical records and has listed no
doctors as witnesses and has not otherwise disclosed any evidence related to their
authenticity. Specifically, Plaintiff seeks to introduce the following records:
1) A letter dated March 13, 2012, from Harlem Vision Center signed by Jaclyn
Benzoni, O.D. (a copy of which is attached as Exhibit C.)
2) A letter dated March 16, 2012, from Northeast Anesthesia & Pain
Management relating to an “initial evaluation” signed by Anson Moise,
M.D. (a copy of which is attached as Exhibit D.)
3) A letter dated March 20, 2012, from Harlem Vision Center signed by Jaclyn
Benzoni O.D. (a copy of which is attached as Exhibit E.)
4) A letter dated April 4, 2012, from Northeast Anesthesia & Pain
Management relating to a “Follow up evaluation,” signed by Anson Moise,
M.D. (a copy of which is attached as Exhibit F.)
5) An letter from Northeast Anesthesia & Pain Management relating to a
“Follow up,” show DOS 04/04/2012, signed by Anson Moise, M.D. (a copy of
which is attached as Exhibit G.)
6) An undated document from the California Surgical Institute quoting
$3,800.00 for cosmetic surgery for reconstruction of the left upper eyelid. (a
copy of which is attached as Exhibit H.)
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These mostly letters that should be excluded because they are not and cannot
be authenticated. Plaintiff’s medical records/letters should also be excluded because
they are hearsay. The letters contain statements made by the purported author
relating to the author’s observations, diagnosis, and statements made to Plaintiff
regarding suggested treatment. In the absence of testimony by a doctor, Plaintiff
cannot lay the foundation for the business records exception pursuant to Fed. R. Evid.
803(6)). See Tutora v. Corr. Med. Care, Inc., No. 9:10-CV-0207 MAD/TWD, 2012 WL
1898871, at *2 (N.D.N.Y. Apr. 30, 2012) report and recommendation adopted, No.
9:10-CV-207 MAD/TWD, 2012 WL 1898915 (N.D.N.Y. May 23, 2012) (holding that
medical records not supported by any custodial affidavit and have not been certified
are not admissible and therefore were not considered in ruling on a motion for
summary judgment.). These are for the most part, letters rather than the kinds of
records that one might expect would be kept in the normal course of business.
Regardless, whether these letters are kept in the normal course of business or the
purpose the letters were written cannot be established by Plaintiff.
Furthermore, although Fed. R. Evid. 803(4) (statements made for medical
diagnosis) might apply to some of Plaintiff’s likely testimony about her condition, it
does not apply to statements made by doctors. See Jackson v. Kaufman, No. 13 CIV.
6544 PAC DF, 2015 WL 5521432, at *9 (S.D.N.Y. Sept. 18, 2015) (a copy of which is
attached here as Exhibit I) (not considering medical records because they were
hearsay and not in an admissible form); Stull v. Fuqua Indus., Inc., 906 F.2d 1271,
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1274 (8th Cir. 1990) (statements made by doctor in report that could not be attributed
to patient were not excepted and properly excluded). Furthermore, Plaintiff has no
personal knowledge of what the doctors observed and reported about her, and so she
cannot establish that the statements regarding their observations are true, and
therefore they are not admissible pursuant to Fed. R. Evid. 803(1) (present sense
impression).
With respect to the bill for cosmetic surgery, that is unauthenticated and pure
hearsay and could only be offered to prove the cost of cosmetic surgery. The document
is undated, but presumably it was given to Plaintiff in 2012. If so, it is too old to be
relevant, is hearsay, and no hearsay exceptions apply or can be established.
Plaintiff has not disclosed or provided any evidence regarding any bills she
actually paid. In fact, at her deposition Plaintiff refused to provide any figure related
to how much her medical bills are, or that she would claim at trial. See Pl. Depo. at
90:15-91:22 (explaining that she does not know what her damages are and that she
has not determined her damages because it is not important to get money damages)
(excerpt attached here as Exhibit J).
Accordingly, she should be precluded from testifying about any amount of
money damages regarding her medical bills. See Fed. R. Civ. P. 37 (one sanction for
failing to disclose evidence is preclusion at trial); see also Design Strategy, Inc. v.
Davis, 469 F.3d 284, 296 (2nd Cir. 2006)(directing trial courts considering excluding
evidence for failure to disclose to consider “’(1) the party's explanation for the failure
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to comply with the [disclosure requirement]; (2) the importance of the testimony of
the precluded [evidence]; (3) the prejudice suffered by the opposing party as a result
of having to prepare to meet the new testimony; and (4) the possibility of a
continuance.’”) (quoting Patterson v. Balsamico, 440 F.3d 104 (2nd Cir. 2006)). None
of the factor recounted in Design Strategy weigh in favor of admitting purposefully
undisclosed evidence that is otherwise inadmissible.
V. Motion in Limine to exclude evidence related to medical causes for claimed injuries including “photophobia,” “diplopia,” “disrupted sleep,” “distorted vision,” “sensitivity to light,” neck pain, and back pain. For the reasons set forth in Motions I and III above, statements made by
doctors regarding specific medical conditions should be excluded. Additionally,
Plaintiff should be prevented from testifying at trial about medical conditions for
which there is no admissible evidence showing they caused of her claimed injuries.
Such opinion testimony requires a doctor or other expert to provide. See Fed. R. Evid.
702.
Plaintiff lacks sufficient knowledge and experience to provide such opinions
herself pursuant to Fed. R. Evid. 701. Additionally, statements made to her by
doctors are hearsay and Plaintiff cannot establish the foundation necessary to
indicate that the doctor’s statements made in letters are accurate and not themselves
statements of possible (speculative) causes, as opposed to causes they would testify
are directly attributable to Plaintiff’s complaints.
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VI. Motion in Limine to exclude evidence of Plaintiff’s claim for damages associated with leaving New York as a result of “media attention.” Plaintiff seeks to introduce evidence that she lost money moving to California
due to the media attention that was given to this incident. In essence Plaintiff is
seeking consequential damages arising from the incident. The overwhelming
majority of consequential damages cases involve contract or contract-like disputes.
Consequential damages are available only if there is evidence that the alleged act by
the defendant caused the claimed damages. See Pitter v. Metro-N. Commuter R.R.,
826 F. Supp. 2d 612, 616 (S.D.N.Y. 2011).
In tort cases, courts have addressed medical monitoring as a form of
consequential damages that may be recoverable so long as there is a causal
connection between the allegedly tortious act and there is more than just a financial
injury. See Caronia v. Philip Morris USA, Inc., 22 N.Y.3d 439, 452, 5 N.E.3d 11, 18
(2013) (holding that, absent any evidence of present physical injury or damage to
property, there is no cause of action for medical monitoring). In Abusio v. Consol.
Edison Co. of New York, 238 A.D.2d 454, 455, 656 N.Y.S.2d 371, 372 (1997), the
appellate court held that damages arising from the fear of cancer were not recoverable
unless there was a “rational basis” for their fear of developing the disease. See also
Caroina, 22 N.Y.3d at 448-49 (discussing Abusio).
Generally, New York law stands for the proposition that consequential
damages are awardable only if there is a sufficient link between the consequence, the
alleged tort, and the actual damage.
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Here, Plaintiff was hit in the eye and Defendant was investigated; no charges
were ever brought. Because he is a well-known personality, the press picked up the
story. Plaintiff claims she was upset by the press coverage and made a decision to
move to California. As damages, she seeks moving costs. Other than the unfounded
allegation that Defendant hit Plaintiff, the actions of the press and Plaintiff’s own
subsequent decision to move for emotional reasons have no causal connection to any
act by Defendant, let alone the alleged punch. Nor is there a reasonable basis for
Plaintiff to believe that her fear of the press would be on-going. Indeed, there is no
evidence that the press covered the situation following the police’s decision not charge
Defendant. Thus, to the extent that the “rational basis” element applies in this
circumstance, it cannot be met. Accordingly, all evidence related to her moving to
California as a result of the incident and all damages related to moving should be
excluded from trial.
VII. Motion in Limine to exclude evidence of costs and expenses related to bringing this case including travel costs, missed time from work, costs associated with “legal assistance” Plaintiff seeks to introduce evidence of the amounts she has paid to prosecute
this case, including time off work. Plaintiff is not entitled to seek litigation expenses
as damages in this case and so such evidence is irrelevant and should be excluded.
C.f. Versatile Housewares & Gardening Sys., Inc. v. Thill Logistics, Inc., 819 F. Supp.
2d 230, 244 (S.D.N.Y. 2011) (noting that under New York law, there is no support for
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the proposition that litigation expenses are a measure of damages absent
circumstances not present here).
VIII. Motion in Limine to exclude evidence of Plaintiff’s claim for damages associated with alleged future medical treatment. Plaintiff claims that she will need cosmetic surgery at some point in the future.
Evidence of future medical care and its costs requires a medical expert. See Fed. R.
Evid. 702; see also Angamarca v. New York City P'ship Hous. Dev. Fund, Inc., 87
A.D.3d 206, 209, 927 N.Y.S.2d 2, 5 (2011) (trial court properly excluded speculative
evidence regarding the costs of future medical care due to late disclosure and lack of
evidence that would have guided the jury in determining the cost of plaintiff's future
medical expenses in another country); Buggs v. Veterans Butter & Egg Co., 120
A.D.2d 361, 502 N.Y.S.2d 12, 13 (1986) (in the absence of testimony from a medical
doctor regarding the costs of future medical care, the jury's award regarding future
medical costs was based entirely upon uninformed speculation and therefore striking
the award of future medical costs from damage award).
Plaintiff is not calling any doctors or experts to testify about future medical
care. Additionally, any statements made to Plaintiff regarding her medical care are
hearsay. As noted above, statements by doctors are not excepted from the hearsay
rule. Thus, there will be no admissible evidence sufficient for a jury to make any
determination that Plaintiff needs future medical care or how much such care would
cost. Exhibit H, the document purportedly setting forth such costs is, for the reasons
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set forth above, inadmissible. Therefore, all evidence of future medical care should
be excluded.
IX. Motion in Limine to exclude evidence of or related to an alleged voicemail message.
Plaintiff listed am unauthenticated voicemail message she claims to have
received from a person who identified himself as Raymond Edwards as an exhibit she
intends to introduce at trial. No recording has been provided or disclosed to
Defendant by Plaintiff and should be excluded on that basis.
Furthermore, assuming it will be produced at trial, Plaintiff cannot
authenticate the voicemail. See Vayner, 769 F.3d. at 130 (holding that a mere
assertion of identity by a person on the telephone is not in itself sufficient to
authenticate that person’s identity and holding that additional evidence is required
to establish a foundation of authenticity). Finally, it is hearsay not subject to any
exceptions. Therefore, the voicemail should be excluded from trial.
CONCLUSION
For the reasons set forth above, Motions in Limine I-IX should be granted and
the subject evidence excluded from trial.
Dated this 4th day of January, 2016. Respectfully Submitted, _/s/ Jason C. Astle__________________
Jason C. Astle SPRINGER AND STEINBERG, P.C. 1600 Broadway Suite 1200
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Denver, Colorado 80202 Phone Number: (303) 861-2800 Fax Number: (303) 832-7116 E-mail: [email protected] ATTORNEYS FOR DEFENDANT
To: Christin Ambrocia Myles
4185 Mandarin Terrace San Diego CA 92115 [email protected] [email protected]
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