Opinion
No. 01 Civ. 5990 (LTS) (HBP)
November 7, 2003
ORDER
The Court makes the following determinations concerning Plaintiffs and Defendants' respective motions in limine:
Plaintiff's Motion
1. Plaintiff s request for preclusion of the testimony of Captain Sanders as to the circumstances of Plaintiff s helicopter evacuation is denied. If Plaintiff offers testimony regarding the evacuation as evidence of the severity of his injuries, the circumstances of that evacuation are probative of the weight that testimony should be given, and Sanders' testimony would not necessarily depend on hearsay. Any prejudice or confusion resulting from the appearance that Sanders' was providing an opinion about Plaintiffs or anyone else's medical condition can be cured by a limiting instruction. Such an instruction will be given if timely requested.
2. Plaintiffs request for preclusion of the use by Defendants of the records of Dr. Hoffinan and Ms. Grossman is granted. Defendants contend that they intend to use the records at issue, if at all, for impeachment purposes only. Plaintiff has proffered a portion of the transcript of an August 18, 2003 conference before Magistrate Judge Pitman, however, in which he ruled that
[B]y resisting the deposition of Hoffman and Grossman, the defendant will not be able to offer evidence in response to [testimony regarding Plaintiffs reaction to a "hot water" test]. . . . Hoffman and Grossman . . . are not going to be permitted to testify to rebut any testimony by Mr. Baumgart concerning what happened to him during the course of Hoffman's examination.
(Tr. of Aug. 18, 2003 Hearing, Ex. 7 to Thaler Decl. at 46.) Under the terms of Judge Pitman's ruling, Defendants are precluded from offering impeachment or rebuttal evidence with respect to Hoffman and Grossman's examination or testing of Plaintiff.
3. Plaintiffs request for preclusion of the testimony of Joseph Gremelsbacker is denied. Gremelsbacker may testify about his involvement with Plaintiffs submission of a not-fit-for-duty slip to Transoceanic and the basis for Gremelsbacker's taking such action, including his knowledge, if any, of Plaintiff s retention of counsel in connection with any claims he had against Transoceanic. This evidence is relevant to Defendants' defense of malingering and collusion. Evidence of the receipt by Plaintiff of union disability benefits shall likewise be admissible as relevant to Defendants' malingering/collusion defense but not for the purposes of mitigating any damages amount. Gremelsbacker may also testify about the wage agreement executed between Baumgart and Transoceanic. The wage agreement, the validity or voluntariness of which Plaintiff does not dispute, provides that the agreement "maybe entered in evidence by either of the parties hereto in any subsequent suit arising out of the Incident." (Agreement, Ex. D to Betancourt Decl. in Opp., ¶ 7.) Gremelsbacker may also testify, based on his personal knowledge, if any, about the training normally received by seamen of Plaintiff s rating, as this evidence is relevant to the question of Transoceanic's alleged negligence in training Plaintiff. Plaintiff has not shown that any of the above testimony would cause unfair prejudice or a potential for jury confusion that would substantially outweigh its probative value.
4. Plaintiff s request for the preclusion of the deposition testimony of Thomas Bethel that was elicited by Defendants' counsel is granted. As explained below, the Court is precluding any testimony from Bethel concerning potential earnings or lost wages, thus eliminating any need for Defendants to use portions of his testimony for rebuttal. Furthermore, Defendants have not presented any evidence that Bethel had any involvement with or knowledge of any of the events at issue in this case, including Baumgart's submission of a not-fit-for-duty slip to Transoceanic. Accordingly, testimony from Bethel concerning those events is not probative of the existence of any fact of consequence to determination of this action and is therefore inadmissible.
Defendants' Motion
1. Defendants' request for preclusion of the testimony of Thomas Bethel, a national executive vice president of Plaintiff s former union, as to the wages and potential earnings of seamen "similarly situated" to Plaintiff is granted. To the extent Bethel's testimony is offered under Federal Rule of Evidence 702, it is inadmissible because Plaintiff has failed to comply with the requirements of Rule 26(a)(2) of the Federal Rules of Civil Procedure. Plaintiff never identified this witness as an expert or produced the written report required by Rule 26(a)(2). Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that
A party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at trial . . . any witness or information not so disclosed.
Plaintiff has not shown that his failure to comply with Rule 26(a)(2) was either substantially justified or harmless. Instead, Plaintiff presumably seeks to offer Bethel's testimony regarding actual earnings of deck officers similarly situated to Plaintiff either as non-opinion testimony or Federal Rule of Evidence 701 lay witness opinion testimony. Rule 701 provides that
Plaintiff does not provide any legal authority or argument supporting the admissibility of the testimony in question.
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Bethel's testimony consists of wage and benefit information for the years 1999 to 2033 for various officer ratings. The figures for years 1999 to 2003, which are derived in part from two union contracts, and the projected figures for 2004 to 2033, were determined assuming a certain number of work days per year as well as certain annual wage and benefit increase percentages. See Bethel Dep., Ex. 3 to Betancourt Decl. at 11-18. In describing the basis for the wage and benefit increase percentages, Bethel explained that the rates were derived in consultation with the union's director of benefits, director of finance, and actuaries. (Bethel Dep. at 18, 25.) Accordingly, it is clear that Bethel's opinion is not based on his personal knowledge of wage and benefit increases, but was based in part on outside information, including the specialized or technical knowledge of others, and thus is inadmissible as Rule 701 lay opinion.
Bethel's analysis clearly relies on technical or specialized knowledge within the scope of Rule 702. The Advisory Committee Notes for the 2000 Amendments to Rule 701 explain that 701(c) was added "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." The Committee's concern is directly implicated here. Unlike situations in which business owners have been allowed to provide lost profit estimates in the form of lay opinion testimony because of their personal knowledge of the business, here Bethel has admitted that the assumptions underlying his wage and benefit estimates were developed without any reference to Plaintiffs actual employment history.See Bethel Dep. at 81-82. Nor is there even any representation that Bethel had personal knowledge of all of the underlying data from which his proposed testimony is derived. Bethel's conclusions about Plaintiffs potential earnings involve extrapolations and inferences that present sufficient reliability concerns to bring Bethel's testimony within the scope of Rule 702. Accordingly, the Court finds that Bethel's proffered testimony is inadmissible.
See, for example. Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 265 (2d Cir. 1995) ("a president of a company . . . has `personal knowledge of his business . . . sufficient to make him eligible under Rule 701 to testify as to how lost profits should be calculated'" (quoting In re Merritt Logan. Inc., 901 F.2d 349, 360 (3rd Cir. 1990))).
2. Defendants' request pursuant to Rule 407 of the Federal Rules of Evidence for preclusion of any evidence, argument, or reference concerning Transoceanic's post-accident adoption of a policy requiring shipboard personnel to wear hard hats during sea plow recovery is granted to the following extent: Plaintiff may not offer evidence of the post-accident policy to show that Defendants should have known about the need for the policy before the accident, which is nothing other than attempting to show that Defendants were negligent. Rule 407 does not, however, preclude the admission of evidence of the hard hat policy for the purposes of impeachment or to rebut an affirmative defense of contributory negligence. See Pitasi v. Stratton Corp., 968 F.2d 1558, 1560-61 (2d Cir. 1992). The Court reserves ruling for trial on the admissibility of evidence of the policy for impeachment or rebuttal purposes.
3. Defendants' request that the video-taped deposition of Timothy Michael not be shown at trial is granted. Michael, who testified concerning his personal relationship with Plaintiff, was dressed in a police uniform during the deposition. Plaintiff has not denied Defendants' assertion that Plaintiffs counsel declined the videographer's offer, made after Defendants' objection to the uniform, to frame the shot so as not to show the uniform. Although the transcript of the deposition maybe read, the probative value of the videotape is substantially outweighed by the danger that the appearance of authority conveyed by the uniform would confuse and mislead the jury and thus be unfairly prejudicial to Defendants.
SO ORDERED.