Summary
ruling that "any attack on [the expert's] credentials ... goes to the weight of his testimony, not its admissibility"
Summary of this case from Jensen v. Cablevision Sys. Corp.Opinion
No. 02 Civ. 6862 (JFK).
October 26, 2004
MEMORANDUM OPINION and ORDER
Defendants move to exclude four violations issued by the Environmental Control Board on August 26, 2002, three days after the accident. The violations state that Brookfield failed to notify the Department of Buildings (i) of the raising of the cathead, pursuant to Reference Standard 18-7 and Rule 26.1.1.2 and (ii) of the 90-day reinspection pursuant to Rule 25.10.2.1.
With respect to RS 18-7 and the Rules 25 and 26, defendants claim that violation of a New York City ordinance does not constitute negligence per se and that plaintiffs must show that the violation was a substantial factor or proximate cause of the injury at issue, and plaintiffs cannot establish that the violations of RS 18-7, Rule 26.1.1.2 and Rule 25.10.2.1 were proximate causes of decedents' deaths. They do, however, acknowledge "that a violation of a City ordinance . . . may be some evidence of negligence." Travelers Indem. Co. v. 28 E. 70th St. Constr. Co., 296 F. Supp. 2d 476, 487 (S.D.N.Y. 2003).Travelers Indemnity was a summary judgment case, not an issue decided at an actual trial.
Defendants also argue that the Federal Rule of Evidence 803(8) hearsay exception for public records and reports does not apply in this case because the violations lack trustworthiness. Under Rule 803, the burden of alleging untrustworthiness is on the party opposing admission, and the court assesses "(a) the timeliness of the investigation, (b) the special skills or experience of the official; (c) whether a hearing was held and the level at which it was conducted, and (d) possible motivation problems." Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d Cir. 2000). The motion addresses none of these factors and argues only that the citations lack trustworthiness because they apply to a personnel hoist, not a material hoist. FRE 803(8) is not a bar to admissibility here.
Plaintiffs respond to issue of whether the code covers material as well as personnel hoists as follows:
"The Code treats personnel hoists and material hoists as one in (sic) the same for purposes of the violations for which Brookfield was cited. The Code does not contain a separate section for material hoists concerning the notice requirements that must be provided to the Department of Buildings prior to any "cathead" jump." (p. 7 Plaintiffs' Memorandum in Opposition)
There is no support for plaintiffs' position that material and personnel hoists are treated the same except that I do note that the violations at issue clearly pertain to provisions of the code dealing with material hoists. By inference, plaintiffs' position seems correct.
The failure to notify the Elevator Division of the Buildings Department before the so-called "cathead" jump at issue here would have triggered an inspection of the elevators and their braking system. Defendants did plead guilty and pay fines because of the violations on the material hoist.
Keeping evidence of the four violations out would unfairly prejudice plaintiffs and give the jury a skewed version of the situation.
The motion is denied.
SO ORDERED.