Opinion
Index 106616/2011
10-29-2021
RAUL MARQUEZ, Plaintiff, v. 171 TENANTS CORP., Defendant.
Unpublished Opinion
DECISION & ORDER
LOUIS L. NOCK, J.
Jury selection in this matter is scheduled for November 3, 2021. Defendant moves, in limine, to preclude plaintiff from offering into evidence at trial a videotape of plaintiff s surgical procedure in connection with the injury alleged in this action.
Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury (Jerome Prince, Richardson on Evidence § 4-101 [11th ed 2008]). Trial courts have broad discretion in ruling on the admission of evidence (see, Messinger v. Mount Sinai Medical Ctr., 15 A.D.3d 189 [ 1 st Dept 2005]).
In the present case, despite the fact that no one is disputing that plaintiff has had surgery to treat his injuries, plaintiff has served a Notice of Intention to offer into evidence the video of the surgery taken of plaintiff on July 1, 2020, at St. Joseph's Hospital by Richard Radna, M.D. This video should be excluded as any probative value it may have is outweighed by its prejudicial effect on the jury. Any video of a surgery is prejudicial and would only serve to inflame a jury (see, e.g., Glusaskas v. Hutchinson, 148 A.D.2d 203 [1st Dept 1989] Oury's viewing of videotape was highly improper, inflammatory and prejudicial]; Blanchard v. Lifegear, Inc., 45 A.D.3d 1258 [4th Dept 2007] [any probative value of a surgery video was outweighed by the prejudicial effect]). This is especially true as where, as in the present case, there is no dispute that the surgery occurred.
In addition, the video would be utterly cumulative because plaintiffs counsel has noticed its intention to call Dr. Radna as a live witness in the trial of this matter. Furthermore, plaintiffs complete medical records are being submitted at trial and will be testified about by plaintiffs expert (see, Peat v. Fordham Hill Owners Corp., 110 A.D.3d 643 [1st Dept 2013]; Cuevas v. St. Luke's Roosevelt Hosp., 95 A.D.3d 580 [1st Dept 2012]).
In sum, the video of plaintiff s surgery is completely unnecessary to the trial of this action and its introduction would only serve to shock and/or inflame the jury by its potentially graphic nature, and would have an unsubstantiated prejudicial effect on defendant in the trial of this matter.
Accordingly, it is
ORDERED that the motion by defendant in limine to preclude evidence at trial consisting of the video of the surgery performed on plaintiff on July 1, 2020, at St. Joseph's Hospital is granted, and said video is hereby precluded.
This will constitute the decision and order of the court.
DECISION & ORDER
Jury selection in this matter is scheduled for November 3, 2021. Plaintiff moves, in limine, to preclude defendant from offer into evidence at trial surveillance footage produced during discovery eight years ago, on July 25, 2013. Defendant's production came under cover of an "Exchange of Surveillance Footage" notifying plaintiffs counsel: "Please be advised that at the time of trial, the defendant intends to introduce this copy of the video surveillance disc into evidence."
On November 26, 2013, plaintiffs counsel served a "Notice of Rejection" asking for the names of the company and individuals who created the footage; all portions of the footage - "not just the portions the defendant intends to use" - and "any related transcripts, memoranda or reports" created in connection with the footage. The notice also requested "all take-outs and the original tapes." The notice finally requested "the specific dates and time that the surveillance was conducted." No motion to compel/preclude was made. Instead, by "Supplemental Notice of Rejection" dated March 24, 2020, plaintiffs counsel reiterated its requests. Again, no motion to compel/preclude was made.
By second "Exchange of Surveillance Footage" dated December 23, 2020, defendant's counsel produced what it described as a video "constitut[ing] the full and complete footage," providing the name and address of the company which created the footage, as well as the date it was created. That notice also contained a representation that "There was no editing and there are no out-takes. In addition, no report was prepared. Defendant reserves all rights to utilize and and/or all portions of this video at the time of trial." Yet again, no motion to compel/preclude was made; nor was any non-party subpoena served by plaintiffs counsel on the then-identified surveillance company.
By second "Supplemental Notice of Rejection" dated January 28, 2021, plaintiffs counsel reiterated its two previous requests for what it had previously sought as the production of complete footage. And, indeed, yet again, no motion to compel/preclude was made; nor was any non-party subpoena served by plaintiffs counsel on the then-identified surveillance company.
Now, on the eve of jury trial, plaintiffs counsel asks this court, under the guise of a motion in limine, to preclude the footage.
A motion in limine cannot be used as a means of precluding evidence which could have been challenged or amplified through resort to amply available pre-trial procedural means (see, Wagner v. 119 Metro, LLC, 59 A.D.3d 531, 533 [2d Dept 2009] [reversing a post-trial judgment where the trial court "improvidently" granted a motion in limine to preclude evidence which, during the discovery phase of the case, could have been procured or precluded by that movant through motion to compel/preclude practice]). Here, this saga involving the sufficiency of the subject footage has its genesis eight years ago, when defendant first produced the footage. Subsequent in time to plaintiffs first "rejection" of the production, defendant, almost one year ago, produced what it understood to be a complete video, and answered the questions put to it by plaintiffs counsel concerning the identity of the creator of the footage and other particulars. Instead of ever moving to compel or preclude, or ever serving a non-party subpoena on the video creator, plaintiffs counsel simply reiterated its prior requests to defendant's counsel in connection with the footage. Plaintiffs counsel cannot now approach the court on the eve of trial, by resort to what it styles a motion in limine, seeking preclusion of the footage, after it has done nothing in all these years of pendency to meaningfully seek satisfaction. Facially, at least, defendant's counsel has done all it could do in response to plaintiffs counsel's repeated requests for purported completeness (see, id. [taking note of the fact that the opposing party had responded to the movant's prior discovery demand, in substance]).
Accordingly, it is
ORDERED that plaintiffs motion in limine to preclude defendant from offering into trial evidence the surveillance footage produced by defendant on December 23, 2020, is denied.
This will constitute the decision and order of the court.
DECISION & ORDER
Jury selection in this matter is scheduled for November 3, 2021. Plaintiff moves, in limine, to preclude defendant from offering into evidence at trial the live testimony of one, Florence Leon, identified by the motion as "a physical therapist treating the plaintiff," as well as any deposition testimony of that person.
By written correspondence to the court and plaintiffs counsel, dated October 20, 2021, defendant's counsel advised that it would not be calling Ms. Leon as a witness at trial; nor will it be offering any of her deposition testimony at trial.
Accordingly, it is
ORDERED that, in light of the fact that Florence Leon's live testimony at trial, and/or deposition testimony at trial, will not occur, plaintiffs motion in limine to preclude such evidence is denied as moot; and it is further
ORDERED that, in view of the aforementioned correspondence and foregoing disposition, no documentary evidence created by Florence Leon will be admitted at trial.
This will constitute the decision and order of the court.
DECISION & ORDER
Jury selection in this matter is scheduled for November 3, 2021. Defendant moves, in limine, to preclude plaintiff from offering into evidence at trial any evidence in support of a claim for lost wages on the theory that "plaintiff has not provided ANY such evidence," i.e., evidence of "lost or future earnings," as a result of the claimed injury (NYSCEF Doc. No. 28 at 1). Included in this motion is a request to preclude the expert report, or any testimony, from plaintiffs wage loss expert, Larry Lichtenstein, Ph.D. (see, Expert Report, NYSCEF Doc. No. 39). The main gist of the motion is that "[a]ny attempts at trial for plaintiff to offer such evidence would be speculative . . .." (NYSCEF Doc. No. 28 at 1.)
Plaintiffs counsel had served Dr. Lichtenstein's expert wage report almost one full year ago (see, Expert Report, NYSCEF Doc. No. 39). That would have afforded defendant ample time to retain its own expert to examine and, perhaps, contradict Dr. Lichtenstein's findings or the bases therefor. As Dr. Lichtenstein notes at the very outset of his report, his analysis was based on various facially reasonable assumptions which include a work life span ending at age 60 and an earning capacity set at minimum wage. Defendant does not assail Dr. Lichtenstein's qualifications in any way; nor does defendant meaningfully suggest any reason why the assumptions and analyses of Dr. Lichtenstein's report should be deemed facially invalid.
In addition to Dr. Lichtenstein's report, plaintiffs counsel has made reference to plaintiffs ability to refer to his tax returns (see, Papa v. City of N.Y., 194 A.D.2d 527 [2d Dept 1993], appeal dismissed 82 N.Y.2d 918 [1994]).
To be sure, loss of earnings must be established with reasonable certainty; but the question really involves some form of future projection about plaintiffs earning capacity before and after the injury (Calo v. Perez, 211 A.D.2d 607, 608 [2d Dept 1995]). Dr. Lichtenstein's report, on its face, makes every reasonable attempt to do just that.
In addition, plaintiff may be allowed to testify at trial regarding his wages (see, Ferguson v. City of N.Y., 73 A.D.3d 649 [1st Dept 2010] [proof of earnings can consist of a plaintiff s testimony, and is not considered, in and of itself, speculative]; Kane v. Coundorous, 11 A.D.3d 304 [1st Dept 2004] [unanimously affirming verdict on lost earnings "based solely on plaintiffs testimony without supporting documentation" where defendants did not challenge the testimony]; Butts v. Braun, 204 A.D.2d 1069 [4th Dept 1994] [noting the threshold adequacy of a plaintiffs testimony regarding her earnings]).
The court understands that defendant intends to, and is entitled to, challenge any such testimony by the plaintiff at the trial of this action. The point made in the textual reference is simply to point out that plaintiff is equally entitled to proffer such testimony, subject, of course, to cross-examination, and argument of defendant's counsel at opening and closing relating to the probative value of such testimony.
Plaintiffs counsel makes reference to the known fact among the parties that plaintiff had filed a Workers' Compensation claim with the New York State Workers' Compensation Board, which made determinations as to plaintiffs wages (see, NYSCEF Doc. Nos. 45, 46), which do bear relevance at trial short of anything possibly derivative therefrom relating to the nature or duration of any claimed disability (see, IB NY PJI3d 2:290 at 977 [2021]).
In sum, this court is not persuaded that a sufficient showing has been proffered by the defense to justify removing the wage claim from any and all consideration by the jury. The plaintiff is entitled to put whatever his admissible proofs may be before the jury on this claim; as is the defendant equally entitled to try to undermine the probativeness, credibility, and weight of such proofs before the jury.
Accordingly, it is
ORDERED that defendant's motion in limine to preclude plaintiff from offering into evidence at trial any evidence in support of a claim for lost wages, including, but not limited to, evidence to be derived from plaintiffs wage loss expert, Larry Lichtenstein, Ph.D., is denied.
This will constitute the decision and order of the court.