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Frometa v. Diaz-Diaz

September 11, 2008

ADONNA FROMETA, PLAINTIFF,
v.
MARIO E. DIAZ-DIAZ AND ALL AMERICAN HAULERS AND RECYCLING, DEFENDANTS.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

OPINION & ORDER

Plaintiff Adonna Frometa moves in limine to preclude the introduction of her employment records as evidence at trial. Defendants move in limine (1) to preclude from evidence the testimony and life care plan of Dr. Charles Kincaid, (2) to be reimbursed for Dr. Kincaid's surcharge for his deposition, (3) to preclude the diagnostic film taken during a procedure performed by Dr. Ramesh Babu, (4) to preclude from evidence the testimony of Defendant Mario Diaz-Diaz, (5) to preclude the testimony of a representative of Geico Insurance Company, (6) to preclude the testimony of a representative of Carolina Casualty Insurance Company, and (7) to preclude the testimony of a representative of State Farm Insurance. For the reasons set forth below, Plaintiff's motion in limine is denied, but the prejudicial portions of her employment records must be redacted. Defendants' motions in limine numbered one through four above are denied, and Defendants' motions numbered five through seven are granted.

A district court "should exclude evidence on a motion in limine only when the evidence is clearly inadmissible on all potential grounds." Loussier v. Universal Music Group, Inc., No. 02 Civ. 2447, 2007 WL 1098687, at *1 (S.D.N.Y. Apr. 11, 2007) (citation omitted).

I. DISCUSSION

A. Plaintiff's Motion to Preclude Her Employment Records

Defendants seek to introduce Plaintiff's employment records from Rick's Cabaret to show that she continued to work in a physically demanding job for ten weeks following the accident, including nine of the first fourteen days, to impeach her credibility because during her deposition she testified that she worked for a lesser amount of time after the accident, and (3) to suggest that she was involved in a subsequent motor vehicle accident in March 2007.

Plaintiff contends that her employment records from Rick's Cabaret, where she worked as a dancer, and Excel Aire, where she worked as a cabin attendant, are not relevant because she does not claim lost wages. Plaintiff also argues that these employment records should be precluded pursuant to Fed. R. Evid. 403 because of the danger of "unfair prejudice." Specifically, section 6 of the Rick's Cabaret Entertainer Guidelines required Plaintiffs and other dancers to follow certain modes of comportment with respect to their body parts and underwear, in graphic language that could indeed shock the jury and cause unfair prejudice to Plaintiff.

Section 6 of the Entertainer Guidelines should be redacted. Other sections, which are not sensational, are relevant because they could lead a reasonable jury to infer that Plaintiff's job was physically demanding and that her injury was not a serious one since she continued to work following the accident. For example, the Entertainer Guidelines provide that "[a]ll entertainers are required to dance on the stage" and that "[s]hoes must be high heeled and at least three (3) inches in height."

Further, the Excel Aire records show that Plaintiff applied for a job with Excel Aire as a cabin attendant following the accident, a fact that could lead a reasonable jury to draw inferences as to whether Plaintiff sustained a serious injury. Therefore, Plaintiffs' employment records are admissible, with redaction as described above and as permitted by the Court.

B. Defendant's Motion to Preclude the Testimony and Life Care Plan of Dr. Kincaid

Defendants seek an order to preclude the testimony and life care plan of Plaintiff's expert, Dr. Charles Kincaid. First, Defendants argue that Plaintiff did not provide them with Dr. Kincaid's curriculum vitae in violation of Fed. R. Civ. P. 26(a)(2)(B). Plaintiff's counsel insists that he did so. This issue is now moot because Defendants' motion in limine was submitted in May, Defendants undoubtedly received the curriculum vitae well before this September trial, and any failure on Plaintiff's part to provide it appears no more than a clerical mistake.

Second, Defendants argue that Dr. Kincaid's life care plan is inadmissible under the standard articulated by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Specifically, Defendants contend that Dr. Kincaid's life care plan is based on conjecture since he never spoke to any medical doctors (but only medical staff), never looked at past bills for any of Plaintiff's past treatments, and admits that growth rates and offsets to present value would have to be calculated by an economist but an economist was never retained.

Here, Plaintiff shoulders the burden of establishing by a preponderance of the evidence that the requirements of Fed. R. Evid. 702, as interpreted by Daubert, are satisfied. See U.S. v. Williams, 506 F.3d 151, 160 (2d Cir. 2007) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593 n. 10 (1993)). The district court must ensure that expert testimony is both relevant and reliable. Daubert, 509 U.S. at 597. The test, however, is a "flexible one." Id. at 594. To determine whether proposed expert testimony constitutes "scientific knowledge," the Court should consider: (1) whether the theory/technique has or can be tested, (2) whether the theory has been subjected to peer review or publication, (3) the known rate of error, and (4) whether the theory or technique has been generally accepted. Id. at 592-94.

Although the district court must ascertain the reliability of an expert's methodology, "it does not necessarily require that a separate hearing be held in order to do so." Williams, 506 F.3d at 161 (citing ...


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