Summary
denying a motion in limine to exclude evidence in support of punitive damages on the ground that it was "in reality" a belated summary judgment motion
Summary of this case from Broadspring, Inc. v. Congoo, LLCOpinion
10 Civ. 8987 (JMF)
05-11-2012
ALBERT WILLIAMS, Plaintiff, v. REGUS MANAGEMENT GROUP, LLC, Defendant.
MEMORANDUM AND ORDER
:
On February 3, 2012, Defendant Regus Management Group, LLC ("Defendant" or "Regus") filed 22 motions in limine. In a telephone conference on February 7, 2012, the Honorable Shira A. Scheindlin, the district judge previously assigned to this case, ordered the parties to meet and confer with respect to these motions. In a letter from plaintiff's counsel dated February 15, 2012, and in briefs later filed in opposition to and in support of the motions in limine, the parties confirmed that they had narrowed the issues in dispute. In particular, Regus agreed to withdraw Motions 1, 3, 4, 5, and 12 (Docket Nos. 55, 57, 58, 59, and 66). Accordingly, Motions 1, 3, 4, 5, and 12 (Docket Nos. 55, 57, 58, 59, and 66) are deemed WITHDRAWN and the Clerk of Court is directed to terminate them.
The parties reached agreement on several other motions as well. First, Regus agreed to modify Motion 7 to seek exclusion of "any evidence, testimony, argument, or comment regarding any reference to the expenditures incurred by any party for the prosecution or defense of this matter or the preparation of any exhibits in this case." Plaintiff Albert Williams consents to objection to Motion 7, so modified. Accordingly Motion 7 (Docket No. 61) is GRANTED as modified. In addition, Williams now consents to Motions 10 and 15 (Docket Nos. 64 and 69). Accordingly, those motions are GRANTED.
Finally, Williams consents in part and objects in part to the relief Regus seeks in Motion 13 (Docket No. 67). Specifically, Williams consents to the motion insofar as it seeks to exclude any evidence relating to complaints brought by Trudy Benjamin. Accordingly, Motion 13 is granted to that extent. The Court will address the remainder of Motion 13 at the Final Pretrial Conference scheduled for May 14, 2012.
Otherwise, only Motions 2, 6, 8, 9, 11, 14, and 16 through 22 remain in some dispute. Williams does not seriously challenge the relief sought in Motions 2, 6, 8, and 11, but instead opposes these motions on the ground that there is no need for an advance ruling from the Court on the matters raised. The Court agrees. The Court has confidence that neither party will seek to introduce obvious hearsay, absent an applicable exception, see Fed. R. Evid. 801-807; or seek to introduce evidence or testimony that is plainly irrelevant, see Fed. R. Evid. 402, or not within the witness's personal knowledge, see Fed. R. Evid. 602. To the extent that there is an objection to particular evidence or testimony on those bases, the Court will rule on such an objection at trial. The same considerations apply to the vast majority of Motion 18 (Docket No. 72), which seeks to preclude improper lay opinion testimony. Accordingly, Motions 2, 6, 8, 11, and 18 (Docket Nos. 56, 60, 62, 65, and 72) are DENIED without prejudice to either party making an objection to particular evidence or testimony on those grounds at trial.
That leaves Motions 9, 14, 16, 17, and 18 through 22. In Motion 9, Regus seeks to preclude Williams from introducing "any evidence, testimony, argument, or comment regarding any settlement negotiations, attempts, or offers to compromise." Insofar as the motion seeks to preclude such evidence for any purpose, it is plainly overbroad as Rule 408 of the Federal Rules of Evidence, upon which the motion is based, "is not a blanket rule of inadmissibility for any and all statements in the settlement context. If evidence is 'offered for another purpose' apart from liability for (or damages resulting from) the claim under settlement discussion, that evidence may be admitted." Carr v. Health Ins. Plan of Greater New York, Inc., No. 99 Civ. 3706 (NRB), 2001 WL 563722, at *4 (S.D.N.Y. May 24, 2001).
In particular, the parties appear to dispute whether a letter from Williams's attorney to Regus, dated March 1, 2010, and marked as Plaintiff's Exhibit 29, is subject to Rule 408. As other courts have held in nearly identical circumstances, "correspondence that was part of settlement negotiations 'can be used to establish an independent violation (here, retaliation) unrelated to the underlying claim which was the subject of the correspondence (race discrimination).'" Carr, 2001 WL 563722, at *4 (quoting Carney v. American Univ., 151 F.3d 1090, 1095 (D.C. Cir. 1998)); cf. Uforma/Shelby Business Forms, Inc. v. NLRB, 111 F.3d 1284, 1294 (6th Cir. 1997) ("[W]e hold that Rule 408 does not exclude evidence of alleged threats to retaliate for protected activity when the statements occurred during negotiations focused on the protected activity and the evidence serves to prove liability either for making, or later acting upon, the threats."). Accordingly, Motion 9 (Docket No. 63) is DENIED.
In Motion 14, Regus seeks to exclude evidence of "statistical analysis" on the ground that it requires expert testimony, which Williams does not seek to offer. Among other things, Regus speculates that Williams may seek to introduce evidence concerning the proportion of those laid off by Regus in January 2010 who were African American; the representation of African Americans in higher-management positions at Regus; the proportion of e-mails from Williams to which Chris Hadfield failed to respond and the proportion of "scheduled" conference calls with Williams that Hadfield failed to attend. This evidence, however, is materially indistinguishable from the evidence approved by the Court of Appeals in Stratton v. Department for the Aging for the City of New York, 132 F.3d 869 (2d Cir. 1997). In keeping with that decision, therefore, Motion 14 (Docket No. 68) is DENIED. Regus is free, of course, to object at trial if evidence is offered or used in a manner that could be confusing to the jury or prejudicial to the defendant. Further, Regus is free to request a limiting jury instruction, if appropriate.
Regus's next motion, Motion 16, seeks to preclude Williams's claim for punitive damages or, in the alternative, bifurcation of the liability and punitive damages phases of the trial. To the extent that the motion purports to seek exclusion of evidence, Williams is correct that the motion is, in reality, a motion for summary judgment dismissing the claim for punitive damages. See, e.g., Dollman v. Mast Industries, Inc., No. 08 Civ. 10184 (WHP), 2011 WL 3911035, at *2 (S.D.N.Y. Sept. 6, 2011); see also, e.g., Hazeldine v. Beverage Media, Ltd., No. 94 CIV. 3466 (CSH), 1997 WL 362229, at *2 (S.D.N.Y. June 27, 1997). As in Dollman, Regus previously moved for summary judgment in this case — a motion denied by Judge Scheindlin in a thorough opinion dated December 6, 2011 — and did not seek to dismiss the claim for punitive damages. See Dollman, 2011 WL 3911035, at *2. At this stage, therefore, the issue of whether Williams is entitled to punitive damages must await resolution at trial. Here, as in Dollman, of course, Regus may move to dismiss the claim for punitive damages at the close of Williams's case at trial. See id. The Court will address Regus's alternative request for bifurcation, as well as Motion 17 — which seeks to preclude reference to, or evidence of, Regus's financial condition — at the Final Pretrial Conference on May 14, 2012.
In Motion 20, Regus seeks to preclude "expert opinions and testimony from any undisclosed experts (including any medical provider), regarding causation, prior treatment, foreseeability, diagnosis, prescribed medications, plaintiff's prognosis, or required future care." Relatedly, Motion 21 seeks to preclude lay opinions or conclusions regarding the cause or causes of Williams's emotional distress, and Motion 22 seeks to exclude Williams's medical records. More specifically, the three motions appear to be seeking to exclude testimony and records from Williams's treating physician, Dr. Joan Mariyampillai, and from his therapist, Dr. Deidre Anglin, both of whom were noticed by Williams as non-expert witnesses on the Joint Pretrial Order.
In support of these motions, Regus relies primarily on cases from other Circuits. "Courts in this Circuit," however, "have regularly held that treating physicians may testify as to opinions formed during their treatment, including causation, severity, disability, permanency and future impairments, without the obligation to submit an expert report." Manganiello v. Agostini, 07-CV-3644 (HB), 2008 WL 5159776, at *12 (S.D.N.Y. Dec. 9, 2008) (emphasis added) (citing cases). Here, as in Philbert v. George's Auto & Truck Repair, No. 04-CV-405 (DRH), 2005 WL 3303973, at *2 (N.D.N.Y. Dec. 6, 2005), one of the two cases from the Second Circuit upon which Regus relies, the treating physicians were identified by Williams and the medical records of such treatment were provided to or obtained by Regus. "This satisfied the requirements of Rule 26(a)(2)(A) to permit the treating physicians to testify to their care and treatment of [Williams] and reports were not required." Id. Accordingly, Motions 20 through 22 (Docket Nos. 74, 75, and 76) are DENIED.
In the absence of an expert report, however, the testimony of Williams's treating physicians will be limited to opinions they actually formed during the course of treating Williams. See, e.g., Green v. McAllister Bros., Inc., No. 02 Civ. 7588 (FM), 2005 WL 742624, at *13 (S.D.N.Y. Mar. 24, 2005); Lewis v. Triborough Bridge and Tunnel Auth., No. 97 Civ. 607 (PKL), 2001 WL 21256, at *1 (S.D.N.Y. Jan. 9, 2001). Moreover, Motion 22 is denied without prejudice to Regus challenging admission of particular reports — or particular entries in reports — on grounds not addressed herein, including hearsay.
In sum, for the reasons stated above, the Court ORDERS that:
(1) Regus's Motions in Limine 1, 3, 4, 5, and 12 (Docket Nos. 55, 57, 58, 59, 66) are WITHDRAWN;
(2) Motions in Limine 2, 6, 8, 9, 11, 14, 18, 20, 21, and 22 (Docket Nos. 56, 60, 62, 63, 65, 68, 72, 74, 75, and 76) are DENIED; and
(3) Motions in Limine 7 (as modified), 10, and 15 (Docket Nos. 61, 64, and 69) are GRANTED.
The Clerk of the Court is directed to terminate all these motions accordingly.
The parties should be prepared to address all open issues — specifically, the portions of Motions 13 and 16 not ruled upon above as well as Motions 17 and 19 — at the Final Pretrial Conference scheduled for May 14, 2012, at 10 a.m.
SO ORDERED. Dated: May 11, 2012
New York, New York
/s/_________
JESSE M. FURMAN
United States District Judge