United States District Court, D. Connecticut
RULING ON PENDING MOTIONS IN LIMINE
Jeffrey Alker Meyer United States District Judge.
accordance with the reasons stated on the record during the
pretrial conference on June 1, 2017, the Court issues the
Plaintiffs' motion to preclude MTA police reports and/or
evidence of copper theft (Doc. #322) is GRANTED in part and
DENIED in part. The motion is GRANTED as to Exh. 515, DENIED
as to Exh. 518, and DENIED as to Exh. 516, which will be
admitted at trial if defendants lay a proper foundation
pursuant to Fed.R.Evid. 803(6) or any other exception to the
hearsay rules. The motion is DENIED as moot as to Exh. 517,
in light of defendants' representation that the exhibit
will be used, if at all, only to refresh a witness's
recollection, but without prejudice to renewal in the event
defendants determine at a later time that they intend,
contrary to their representations, to offer the exhibit. The
motion to preclude testimony about Colon's possible
copper theft or attempt to steal MTA property is GRANTED.
Defendants shall not elicit testimony or attempt to show that
Colon was on defendants' property to commit a crime or
steal copper wire.
Plaintiffs' motion in limine to allow various
summaries (Doc. #323) is GRANTED in the absence of any
suggestion that the summaries are factually inaccurate.
Plaintiffs' motion to compel defendants to accept trial
subpoenas (Doc. #360) is GRANTED subject to the understanding
that defendants will facilitate service of process by setting
up a time and place for service of the witnesses, but will
not themselves accept service of process.
Plaintiffs' motions for judicial notice regarding the
authentication of photographs and pediatrician records, and
regarding the proximity of schools and playgrounds (Docs.
#350, #351, #353) are DENIED without prejudice to renewal in
the event the exhibits and testimony have not been admitted
through conventional means at trial, i.e., by
presenting witnesses and laying a proper foundations, as is
custom during a trial. Plaintiffs' motion for judicial
notice regarding the unreliability of urine toxicity tests
(Doc. #352) is DENIED as not the proper subject of judicial
Defendants' motion to preclude testimony of
late-disclosed witnesses (Doc. #325) is DENIED, except that
defendants are permitted to depose the witnesses identified
in the motion within the next 30 days, with each deposition
not to exceed two hours in duration.
Defendants' motion to preclude evidence regarding the
MTA's duty to patrol (Doc. #328) is GRANTED insofar as
plaintiffs do not assert that the MTA owed Colon a duty to
patrol. The parties remain free to inquire into the MTA's
policing activities, and their efficacy, as relevant to other
issues in the case.
Defendants' motion to preclude evidence about constant
intrusion and/or limit the geographic scope of evidence of
trespassing (Doc. #331) is DENIED, subject to plaintiffs'
representation that physical and testimonial evidence
regarding trespass along the right-of-way will be limited,
geographically, to within one-mile in either direction of
Tower #1043. Evidence from the FRA Casualty Reports will not
be limited geographically.
Defendants' motion to preclude the testimony of Carl
Berkowitz, Ph.D, P.E. (Doc. #332) is GRANTED in part and
DENIED in part. The motion is GRANTED insofar as Berkowitz
may not comment on the evidence in a manner not requiring
expertise, such as on topics (1), (2), (3), (4), and (5) of
Doc. #371 at 2. The motion is also GRANTED insofar as
Berkowitz may not testify about applicable legal standards,
such as topic (6) of Doc. #371 at 2, to the extent that such
standard is not incorporated into Berkowitz's opinion
concerning the industry standard of care. The motion is
otherwise DENIED with respect to Berkowitz's opinions
about accepted industry standards for the safety precautions
at issue, see Doc. #371-2 at 35-37, particularly
because defendants do not dispute that Berkowitz is qualified
to opine on those standards. Berkowitz may also testify about
the application of any accepted industry standards to
defendants, and about the use of effective warnings if that
use is tied to his testimony on accepted industry standards.
If plaintiffs intend to have Berkowitz interpret photographs,
they must lay a foundation for why expert testimony is
needed, and why Berkowitz is qualified as an expert to
interpret those photographs.
Defendants' motion to preclude the testimony of Elliot
Stern, Ph.D (Doc. #333) is GRANTED in part and DENIED in
part. The motion is GRANTED insofar as Stern may not comment
on the evidence in a manner not requiring expertise, such as
on topics (1), (2), (3), (4), and (5) of Doc. #372 at 2. The
motion is also GRANTED insofar as Stern may not testify about
applicable legal standards, such as topic (6) of Doc. #372 at
2, to the extent that such standard is not incorporated into
Berkowitz's opinion concerning the industry standard of
care. The motion is otherwise DENIED as to Stern's
accident-reconstruction testimony, as well as topics (7) and
(8) of Doc. #372 at 2 as they relate to accepted industry
standards for electrical issues, with the understanding that
defendants have not challenged Stern's expertise in these
matters and subject to the same general limits as set forth
with respect to Berkowitz.
Defendants' motion to preclude photographs obtained by
plaintiffs' counsel without defendants' consent (Doc.
#340) is DENIED, but defendants may inquire on
cross-examination about how the photographs were obtained, if
that information is relevant.
Defendants' motion to preclude evidence about spoliation
of the path (Doc. #343) is GRANTED in part and DENIED in
part. The motion is GRANTED as to any evidence about alleged
bad faith conduct or culpability of defendants in covering
the path by performing track maintenance, but DENIED so as to
allow evidence about the fact that defendants caused the path
to be covered if that evidence relates to, for example,
inability of expert witnesses to make observations at a
UI's motion to preclude evidence that UI was negligent or
owed a duty of care to Colon (Doc. #315) is GRANTED, without
prejudice to Metro-North's ability to assert ...