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Ring's End Inc. v. Black and Decker (U.S.), Inc.

United States District Court, D. Connecticut

August 25, 2017

RING'S END INC. and FEDERAL, INSURANCE COMPANY, Plaintiffs,
v.
BLACK AND DECKER (U.S.), INC., Defendant.

          MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS IN LIMINE TDKT. NOS. 43-451

          HON. VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Plaintiffs Ring's End Inc. and Federal Insurance Company bring this action for negligence arising out of an injury which non-party Robert Purciello suffered at one of Defendant Black & Decker, Inc.'s stores. On July 28, 2017, the Defendant filed three motions in limine challenging four categories of evidence offered for trial. [Dkt. Nos. 43-45]. These four categories include (1) the testimony of Joe DeStefano; (2) photographs of a display case taken one month after Mr. Purciello was injured; (3) references to the alleged existence and spoliation of video surveillance evidence; and (4) the testimony of Rita Purciello. For the reasons that follow, Defendant's Motion in Limine [Dkt. No. 43] is GRANTED, Defendant's Motion in Limine [Dkt. No. 44] is GRANTED IN PART and DENIED IN PART, and Defendant's Motion in Limine [Dkt. No. 45] is GRANTED.

         II. Standard of Review

         "The purpose of an in limine motion is to 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 citations omitted). "A motion in limine to preclude evidence calls on the court to make a preliminary determination on the admissibility of the evidence under Rule 104 of the Federal Rules of Evidence." Highland Capital Management, LP. v. Schneider, 379 F.Supp.2d 461, 470 (S.D.N.Y. 2005) (internal citations omitted). "Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds." Id. "A district court's in limine ruling 'is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the ... proffer.'" Id. (quoting Luce v. United States, 469 U.S. 38, 41 (1984)).

         III. Testimony of Joe DeStefano

         The Plaintiffs stated in the Joint Trial Memorandum that Mr. DeStefano would "testify as to investigation of the loss, [and] photographs of the interior of the store following the incident." More specifically, they state that Mr. DeStefano will provide "critical evidence as to the physical characteristics" of a display case over which Mr. Purciello claims that he tripped, including "the fact that the space between the underside of the display case and the floor was sufficient for an individual to catch his foot and trip." [PI. Opp at 4]. Plaintiffs also intend to offer Mr. DeStefano's testimony regarding the feasibility of repositioning the display case within the store. [PI. Opp. at 5]. Defendants seek to exclude this testimony as undisclosed expert testimony, and evidence of subsequent remedial measures.

         Evidence regarding the "physical characteristics" of the display case may take a few forms, including: (1) opinion testimony regarding the feasibility and desirability of changing the display's placement and orientation within the room; (2) opinion testimony regarding whether an individual could injure himself on the display case; or (3) a plain description or depiction of the shape, size, and orientation of the display. The Court will address each category in turn.

         Opinion testimony by lay witnesses is only admissible if it 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." Fed.R.Evid. 701. Absent an offer of proof that Mr. DeStefano was present when Mr. Purciello injured himself, testimony regarding the cause of this injury cannot be "rationally based on the witness's perception" as required under Federal Rule of Evidence 701(a). The Plaintiff readily accedes that Mr. DeStefano was not present during the incident, and did not observe the scene or the display until more than one month had elapsed.

         Because Mr. Purciello did not observe the incident, he may only develop an opinion that the display case caused Mr. Purciello's injury based on observations discernable to the average person, in which case his testimony would not be an aid to the jury.

         Alternatively, his opinion would have to be based on "scientific, technical, or other specialized knowledge, " Fed.R.Evid. 701(c). See also, Fed. R. Evid. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.... This rule does not apply to a witness's expert testimony under Rule 703."). This renders Mr. Purciello an expert witness, and subjects him to the disclosure requirements of Rule 26(a)(2) of the Federal Rules of Civil Procedure and to Rules 702-705 of the Federal Rules of Evidence.

         Rule 26(a)(2) requires a party to "disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed.R.Civ.P. 26(a)(2)(A). Because Mr. DeStefano is an employee investigator whose duties do not appear regularly to involve giving expert testimony, the Plaintiffs were required to disclose: (1) "the subject matter on which the witness is expected to provide evidence under Rule 702, 703, or 705"; and (2) "a summary of the facts and opinions to which the witness is expected to testify." Fed.R.Civ.P. 26(a)(2)(C). These disclosures must be made at the time specified in the Court's scheduling order, or absent a stipulation or court order, "at least 90 days before the date set for trial or for the case to be ready for trial." Fed.R.Civ.P. 26(a)(2)(D).

         Pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure, "If a party fails to provide information or identify a witness as required by Rule 26(a)... the party is not allowed to use that information or witness to supply evidence ... at a trial, unless the failure was substantially justified or harmless." The Court set a deadline for the close of discovery, including the completion of the depositions of expert witnesses, of April 14, 2017. The Joint Trial Memorandum was due on July 28, 2017. Plaintiffs did not provide any expert disclosures to the Defendant, and offers the Court no excuse for failing to do so. Although the Defendants deposed Mr. DeStefano during discovery, by failing to make the required expert disclosures, the Defendant was denied the opportunity to examine Mr. DeStefano's qualifications or the basis of his expertise, and was denied the ability to engage a rebuttal expert. Because Mr. DeStefano can only offer expert opinions as to (1) the desirability of changing the display's placement and orientation within the room; and (2) whether an individual could injure himself on the display case, and the Plaintiffs did not disclose him as an expert on these topics, his testimony on these topics must be excluded.

         Plaintiffs also argue that Mr. DeStefano has personal knowledge of the feasibility of reorienting the display case and the shape, size, and orientation of the display, because he observed the display during his investigation. However, his description of the shape and size of the display case is not needed because the parties plan to show the jury photographs of the display case, the Defendant has stipulated to the display case's dimensions, and Mr. Purciello will be able to explain how it allegedly contributed to his injury. The probative value of additional testimony from Mr. DeStefano on this topic will therefore be substantially outweighed by the likelihood that this evidence ...


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