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 July 9, 2012. Presently before the Court are the parties' motions in limine.
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.
I. Plaintiff's Motion to Preclude Evidence Relating to Workers' Compensation Claim
Plaintiff claims, "[t]here is no dispute between the parties that the worker's compensation claim was never resolved." However, plaintiff argues that "defendant's documents refer to the existence of the claim" and therefore, plaintiff moves to preclude, "any reference in testimony or trial exhibits to worker's compensation claim".
Generally, evidence of workers' compensation payments should not be presented to the jury. Bey v. City of New York, 2012 WL 34223, at *1 (S.D.N.Y. 2012) ("the decision whether or not to deduct unemployment benefits from a Title VII back pay award rests in the sound discretion of the district court"); see also Rorrer v. Cleveland Steel Container Corp., 2012 WL 138756, *24 (E.D.Pa. 2012). However, there are instances where other evidence relating to a worker's compensation claim is clearly relevant. See Layman v. Alloway Stamping & Mach. Co., Inc., 98 F. App'x 369 (6th Cir. 2004)(In an ADA case, trial court did not abuse its discretion by denying employee's motion in limine seeking to exclude all evidence of his workers' compensation claim following hand injury, including evidence that employer had provided compensation during his rehabilitation in amount greater than that required by state law; evidence was clearly relevant to employee's claim that employer intended to discriminate against him because of his disability); see also Corley v. Louisiana ex rel. Div. of Admin., 2011 WL 4916455, at *3 (M.D.La. 2011) (it is possible that evidence related to the plaintiff's workers' compensation claims could be relevant to the plaintiff's remaining retaliation claim and/or the issue of damages).
At this juncture, the Court is hindered in any effort to rule on evidentiary questions outside a factual context. See Luce, 469 U.S. at 41; see also Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas, 262 F.R.D. 293, 299 (S.D.N.Y. 2009) (it is difficult to determine whether testimony will be cumulative or irrelevant before it is actually proffered); see also TVT Records v. Island Def Jam Music Group, 250 F.Supp.2d 341, 346 (S.D.N.Y. 2003) ("the Court is unable in the absence of context to conclude categorically that such evidence is not relevant to matters presented by this case, nor can it assess its probity"). "The Court is unwilling to speculate, pretrial, as to what statements any witness will or will not make during trial." Picciano, 2010 WL 4366999, at *5. Therefore, on a motion in limine, the prudent course of action is to deny the motion, leaving to the parties to object when the other party attempts to introduce some specific evidence on this subject at the trial. See Corley, 2011 WL 4916455, at *3. Plaintiff's request to completely exclude all evidence relating to plaintiff's workers' compensation claim at this time, is denied.
II. Adverse Inference Charge
In plaintiff's trial brief, she indicates her intention to seek an adverse inference charge due to alleged spoliation with respect to a file from the Inspector General's office. Defendant intends to object to any such charge. At this juncture, plaintiff has not requested such a charge and has not provided competent evidence supporting such a charge. Rather, plaintiff discusses what she "intends" to prove at the time of trial and what she "expects" the evidence to establish with respect to the file. Thus, the Court reserves ruling on this issue.
III. Defendant's Motion to Preclude June 15, 2012 Testimony of Dr. Michael Lax Plaintiff characterized the June 15, 2012 deposition of Dr. Lax as a De Bene Esse Videotaped Deposition. "The Federal Rules of Civil Procedure make no distinction for use of a deposition at trial between one taken for discovery purposes and one taken for use at trial (de bene esse) ." George v. Ford Motor Co., 2007 WL 2398806, 11 -13 (S.D.N.Y. 2007) (citing Tatman v. Collins, 938 F.2d 509, 510 (4th Cir.1991)); see also U.S. v. IBM Corp., 90 F.R.D. 377, 381 & n. 7 (S.D.N.Y.1981). Depositions of either type may be used at trial if the witness is unavailable. George, 2007 WL 2398806, at *11-13 (citing ...