Cir. 1984), the Eighth Circuit found that the district court had not abused its discretion when it excluded evidence of a prior fire when there was no evidence to suggest that the prior fire was of incendiary origin, or that the plaintiff had anything to do with the prior fire. In addition, since the plaintiff had not submitted a proof of loss claim for the first fire by the time the second fire occurred, proof of the first fire was not relevant to the issue of familiarity with insurance company procedure.
In Eng v. Scully, 146 F.R.D. 74 (S.D.N.Y. 1993), this Court excluded evidence of a prisoner's disciplinary records while incarcerated, his criminal record, and evidence of his prior litigations for reasons having no relevance to this motion. In Garcia v. Aetna Cas. & Sur. Co., 657 F.2d 652 (5th Cir. 1981), the Fifth Circuit merely sent the matter back to the district court for retrial to determine as a predicate to admission of the evidence of prior fires that the evidence was relevant to an issue other than character.
In Smith v. State Farm Fire & Cas. Co., 633 F.2d 401 (5th Cir. 1980), the district court did not admit evidence of prior fires because it did not find them sufficiently similar in their circumstances nor near enough in time to the fire under consideration, and the Fifth Circuit noted that it was not reaching the question of whether it would have been error to admit the evidence. Outley v. City of New York, 837 F.2d 587 (2d Cir. 1988) concerned whether evidence of prior claims could be brought to show a plaintiff's litigiousness, and Hemphill v. Washington Metro Area Transit Auth., 299 U.S. App. D.C. 184, 982 F.2d 572 (D.C. Cir. 1993) involved the permissibility of a "claims-minded plaintiff" charge.
Pursuant to Rule 403, Fed. R. Evid., otherwise admissible evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. As this Court has noted, "it is difficult for the court to weigh the probative prejudicial balance before the commencement of a trial." East Coast Novelty Co. v. City of New York, 842 F. Supp. 117, 119 (S.D.N.Y. 1994). This motion in limine is therefore denied at this time with respect to evidence relating to the 1986 and 1989 Fires, with leave to renew the motion at such time as the precise use of the evidence and any prejudice resulting therefrom is made clear.
Evidence Relating to Credibility
Sea also seeks to introduce into evidence a loan application for Kingdom; the Plaintiffs' bank statements for 1984 through 1986, and Plaintiffs' applications for public assistance dated July 1984 through January 1986. Sea claims that this evidence is relevant to the issue of the Wagschal's credibility, and to the issue of their financial wherewithal, and thus to their motive to commit arson and insurance fraud.
Rule 611(b), Fed. R. Evid., provides that cross examination can extend to "matters affecting the credibility of the witness." Rule 608(b), Fed. R. Evid., provides that:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness . . . .