The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
The trial of this action is scheduled to commence on December 12, 2011. Presently before the Court are the parties' motions in limine. Plaintiff seeks an order precluding defendant from offering evidence that plaintiff is receiving disability benefits from the Railroad Retirement Board ("RRB") and for an order precluding defendant from introducing plaintiff's disciplinary records. (Dkt. No. 49). Defendant seeks an order from the Court permitting defendant to introduce the RRB evidence. (Dkt. No. 37). Defendant also moves: (1) to preclude plaintiff from offering expert witness testimony due to an untimely and improper expert disclosure; (2) to limit plaintiff's evidence of injuries to those injuries described in plaintiff's answer to defendant's interrogatories; (3) to limit plaintiff's loss of earnings claim to 2008 through 2012; (4) for an order allowing defendant to offer plaintiff's forms, submitted to the RRB, wherein plaintiff described his physical conditions and limitations; and (5) for an order permitting defendant to introduce evidence of plaintiff's failure to follow safety rules. (Dkt. Nos. 38 and 53).
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. U.S., 469 U.S. 38, 40 n. 2 (1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) ("[t]he 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'".) "A motion in limine to preclude evidence asks the court to make a preliminary determination on the admissibility of the evidence under Rule 104 of the Federal Rules of Evidence." Blazina v. Port Auth. of New York and New Jersey, 2008 WL 4539484, at *1 (S.D.N.Y. 2008). As the disputes regarding the admissibility of evidence are made outside the context of the trial, the Court's rulings on the motions in limine are, "subject to change when the case unfolds, particularly if the actual testimony differs from what was expected". Levitant v. City of New York Human Res. Admin., 2011 WL 795050, at *1 (E.D.N.Y. 2011) (quoting Luce, 469 U.S. at 41 ("[o]wing to its preliminary nature, an in limine ruling, 'is subject to change when the case unfolds'".)
The Court addresses the parties' multiple requests for relief seriatim.
Plaintiff argues that based upon the Supreme Court decision in Eichel v. New York Cent. R.R. Co., 375 U.S. 253 (1963), defendant should be barred from making any reference to the fact that plaintiff received collateral income in the form of disability benefits from the RRB. Defendant, "recogniz[es] that some courts have erroneously deemed such evidence inadmissible" but argues that Eichel did not create a "per se exclusion of collateral source evidence" and claims that here, plaintiff's receipt of benefits gave plaintiff an incentive and the financial means to malinger. Therefore, defendant argues that the evidence is relevant and admissible under Fed. R. Evid. 403 subject to a limiting instruction.*fn1
In Eichel, the defendant offered evidence that the plaintiff received $190 a month in disability pension payments under the Railroad Retirement Act of 1937 for the purpose of impeaching the testimony of petitioner as to his motive for not returning to work and as to the permanency of his injuries. Id. at 254. The trial court excluded the evidence.*fn2 The Second Circuit reversed the trial court, finding that it was prejudicial error to exclude the evidence. Id. The Supreme Court reversed the judgment of the Second Circuit and held that evidence of a disability pension in an FELA case was inadmissible in regard to the plaintiff's extent or duration of injury or to show that the plaintiff was not motivated to return to work. Id. at 255. The Court held, "[i]nsofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension." Eichel, 375 U.S. at 255.
Defendant's argument is not a novel one. When faced with an analogous argument, the majority of Circuit and District Courts have applied the Eichel doctrine and precluded the admission of collateral benefits. Sheehy v. S. Pac. Transp. Co., 631 F.2d 649 (9th Cir. 1980); Finley v. Nat'l R.R. Passenger Corp., 1 F.Supp.2d 440, 443 (E.D. Penn. 1998) (the court is not permitted to balance the prejudicial effect against the probative value pursuant to Fed. R. Evid 403 because the receipt of pension benefits is prejudicial as a matter of law); Edsall v. CSX Transp., Inc., 2008 WL 244344, at *2 (N.D. Ind. 2008) (the court precluded the defendant from introducing evidence of RRB benefits based upon Fed. R. Evid. 403); Davis v. CSX Transp., Inc., 2008 WL 2117151, at *2 (E.D. Tenn. 2008); Prater v. Consol. Rail Corp., 272 F.Supp.2d 706, 716 (N.D.Ohio 2003).
In support of the motion, defendant cites to two cases. In McGrath v. Consol. Rail Corp., 176 F.3d 838, 841 (1st Cir. 1998), the defendant moved, in limine, to admit the evidence on the issue of the plaintiff's credibility and the plaintiff's lack of motivation to return to work. The trial court allowed evidence of plaintiff's disability pension payments but, on several occasions, issued cautionary instructions to the jury to consider the evidence only on the issue of malingering. Id. at 841. The First Circuit held that the trial judge did not abuse his discretion and properly received the evidence subject to Rule 403 balancing. Id. at 841. While the plaintiff argued that Eichel precluded such evidence, regardless of the curative instructions, the Court disagreed, noting that, "[w]e do not read Eichel as requiring the per se exclusion of collateral source evidence in FELA cases". Id. at 841. The Court concluded, "[i]f there is little likelihood of prejudice and no strong potential for improper use, and a careful qualifying instruction is given, the receipt of the compensation benefits may be admissible for the limited purpose of proving another matter". McGrath, 136 F.3d at 841.
In Valentine v. CSX Transp., Inc., 2011 WL 2066705, at*2 (S.D. Ind. 2011), another case cited by defendant, the court noted that while evidence of collateral source benefits is "generally inadmissible", the determination must be made based upon the facts of each case. The court noted that the plaintiff, "does not dispute that he receives more money from disability payments than he does from work" and one of the defendant's claims at trial was that the plaintiff was feigning permanency to avoid work. Id. The court denied the plaintiff's motion in limine to exclude such evidence and held, "[d]epending on how events unfold at trial, evidence of collateral source benefits may be relevant to whether plaintiff has a motive for not returning to work and to case doubt on the permanency of plaintiff's injuries". Id.
Still, other courts, adhering to the Rule 403 balancing test, have declined to follow the McGrath holding. Schipper v. BNSF Ry. Co., 2009 WL 997149, at *2 (D. Kan. 2009) (the defense counsel conceded that nothing in the record suggested that the plaintiff malingered); see also Falconer v. Penn Mar., Inc., 396 F.Supp.2d 62, 67 (D. Maine 2005) (the defendant was free to introduce evidence that the plaintiff was educated, an excellent candidate for vocational retraining, and that he is not disabled but could not introduce evidence that he was receiving SSDI benefits as it would "unnecessarily complicate the trial with complex issues and lead to juror confusion"). In Mills v. Energy Transp. Corp., 29 F. App'x 744, 745 (2d Cir. 2002), the Second Circuit cited to the McGrath decision and held that, "Eichel does not establish an absolute bar against the admission of such evidence for purposes other than mitigation of damages".
When presented with similar motions in limine, courts in this Circuit have held that, "the presentation of such evidence before the jury is not allowed, although 'such evidence may be admissible if the plaintiff puts his financial status at issue'". Ebert v. City of New York, 2006 WL 3627103, at *4 (S.D.N.Y. 2006) (citing Santa Maria v. Metro-North Commuter R.R., 81 F.3d 265, 273 (2d Cir. 1996)). Accordingly, at this juncture, plaintiff's motion in limine to preclude the admissibility of evidence relating to RRB benefits is granted. However, this ruling is subject to reconsideration based upon the evidence at trial. See Falconer, 397 ...