United States District Court, D. Connecticut
RING'S END INC. and FEDERAL, INSURANCE COMPANY, Plaintiffs,
BLACK AND DECKER (U.S.), INC., Defendant.
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING
IN PART DEFENDANT'S MOTIONS IN LIMINE TDKT. NOS.
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE.
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.
Standard of Review
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)).
Testimony of Joe DeStefano
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.
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.
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.
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.
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.
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).
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.
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 ...