The opinion of the court was delivered by: Matsumoto, United States District Judge:
Pending before the court are defendants Alvin L. Palmer's and Equashia Allen's ("defendants") motions in limine. By Memorandum and Order dated October 15, 2010, familiarly with which is presumed, the court granted in part and denied in part defendants' motion for summary judgment. See Banushi v. City of New York, No. 08-CV-2937, 2010 U.S. Dist. LEXIS 109903 (E.D.N.Y. Oct. 15, 2010). The court granted summary judgment dismissing all of plaintiff Robert Banushi's ("plaintiff") claims except his claims for false arrest, false imprisonment, assault, battery, and "intrusion of privacy." (Id.)
Defendants now move in limine to preclude plaintiff from introducing certain evidence at trial. The court held a status conference on December 21, 2010 ("December 21 conference"), during which the parties agreed to bifurcate the trial of liability and damages. (See Minute Entry dated Dec. 21, 2010.) At the conference, the parties resolved some of their disagreements; however, several evidentiary disputes remain outstanding. For the reasons set forth below, defendants' motions in limine are granted in part and denied in part.
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996); Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Grp., 937 F. Supp. 276, 283 (S.D.N.Y. 1996). "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." Allen v. City of New York, 466 F. Supp. 2d 545, 547 (S.D.N.Y. 2006) (citation omitted); see Fed. R. Evid. 104(a) ("Preliminary questions concerning . . . the admissibility of evidence shall be determined by the court . . . .") Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94-CV-5220, 1998 U.S. Dist. LEXIS 15093, at *11 (S.D.N.Y. Sept. 25, 1998). Indeed, courts considering a motion in limine may reserve judgment until trial, so that the motion is placed in the appropriate factual context. See Nat'l Union, 937 F. Supp. at 287. Further, the court's ruling regarding a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from what was [expected.]" Luce, 469 U.S. at 41.
Rule 402 of the Federal Rules of Evidence requires that evidence be relevant to be admissible. Fed.
R. Evid. 402. Relevant evidence is defined as evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Thus, the court's determination of what constitutes "relevant evidence" is guided by the nature of the claims and defenses presented.
I.Defendants' Disciplinary History and Personnel Files
Defendants move to preclude (1) "any disciplinary histories and/or civil rights actions" which have been filed against defendants or any other non-party police officers who may testify, and (2) defendants' "personnel files" on the grounds that they are not admissible under Fed. R. Evid. 404(b) and are more prejudicial than they are probative. (ECF No. 69, Defendants' Motions in Limine ("Defs. Mot.") at 2-3.) In response, plaintiff argues that defendants' disciplinary records are admissible pursuant to Fed. R. Evid. 404(b) to show "pattern, intent, absence or mistake or accident" and further, because defendants' records directly relate to "whether defendants had probable cause for the arrest," the proposed evidence is more probative than prejudicial. (ECF No. 70, Plaintiff's Response to Defendants' Motion in Limine ("Pl. Opp.") at 2.) In the alternative, plaintiff argues that if the court precludes the evidence in plaintiff's case-in-chief, he should be permitted to introduce the evidence for impeachment purposes if defendants testify as to their records or character. (Id. at 3.) In reply, defendants note that plaintiff has failed to set forth "what conduct he seeks to introduce and how said conduct is sufficiently related to the conduct at issue." (ECF No. 71, Defendants' Reply in Response to Plaintiff's Opposition to Defendants' Motions In Limine ("Defs. Reply") at 2.) Further, defendants argue, plaintiff did not request defendants' disciplinary records or personnel files during discovery and therefore any basis for inquiring about these records is "purely speculative." (Id. at 2-3.)
To establish that evidence is admissible pursuant to Rule 404(b) of the Federal Rules of Evidence, the court must first determine if the party seeking admission proffers the evidence for a purpose other than to show the character of a person in order to prove that he acted in conformity therewith. Fed. R. Evid. 404(b); see United States v. Benedetto, 571 F.2d 1246, 1248 (2d Cir. 1978). When the party proffers the evidence to demonstrate a pattern of relevant conduct, the evidence must "share 'unusual characteristics' with the act charged or represent a 'unique scheme.'" Berkovich v. Hicks, 922 F.2d 1018, 1022 (2d Cir. 1991) (quoting Benedetto, 571 F. 2d at 1249); Ismail v. Cohen, 706 F. Supp. 243, 252-53 (S.D.N.Y 1989) (stating "specific acts of other misconduct may be introduced as extrinsic evidence under Rule 404(b) to prove . . . pattern of relevant conduct"), aff'd, 899 F.2d 183, 188-189 (2d Cir. 1990). The proffering party must show more than the "'mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The [proffered evidence of other misconduct] must be so unusual and distinctive as to be like a signature.'" Wallace v. Hano, No. 90 Civ. 2064, 1992 U.S. Dist. LEXIS 13388, at *19 (S.D.N.Y. 1992) (quoting Benedetto, 571 F.2d at 1249).
Here, plaintiff provides no details to the court about the nature or content of the records at issue but nonetheless argues that the proposed evidence establishes a "pattern, intent, absence of mistake or accident." Indeed, there is nothing in the record to suggest that defendants even have disciplinary records. Even if they do, plaintiff failed to request the records during the discovery phase of this case. Given this lack of evidence, the court cannot conclude that the proposed evidence establishes a pattern admissible in evidence under an exception to Fed. R. Evid. 404(b), let alone that it establishes an "unusual," "unique" or signature-like pattern of conduct. See Williams v. McCarthy, No. 05 Civ. 10230, 2007 U.S. Dist. LEXIS 79151 (S.D.N.Y. Oct. 25, 2007). Accordingly, the court finds that plaintiff is precluded from inquiring into the officers' disciplinary histories and the contents of their personnel files and grants the defendants' motion in limine as to these records.
II.Plaintiff's Criminal History
Defendants seek to cross-examine plaintiff regarding his "prior arrests and incarcerations, and present or past history of significant trauma" for the purpose of mitigating his claim for psychological damages. (ECF No. 69, Defs. Mot., at 4-6.) In response, plaintiff agrees that "because . . . [plaintiff's] emotional distress is [a] question of fact for [the] jury, . . . defendants may inquire into his arrests" but plaintiff argues that defendants may not inquire as to the reasons for plaintiff's prior arrests. (ECF No. 70, Pl. Opp., at 3.)
The court finds that plaintiff's prior arrest and incarceration history are relevant to the jury's determination of damages under Fed. R. Evid. 402. Because a plaintiff "who has had a number of prior arrests and detentions is likely to have suffered less distress than one who has never before been detained," see Wilson v. City of New York, No. CV-06-229, 2006 U.S. Dist. LEXIS 90050, *1-2 (E.D.N.Y. Dec. 13, 2006), defendants may inquire into plaintiff's past arrests and incarcerations during the damages phase of the trial. Further, the probative value of this evidence is not substantially outweighed by "the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403; see also Picciano v. McLoughlin, No. 5:07-CV-0781, 2010 U.S. Dist. LEXIS 114704, *7 (N.D.N.Y Oct. 28, 2010) ("[Plaintiff's subsequent arrests are probative of Plaintiff's claim for emotional damages, and the probative value of the testimony is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."). ...