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William Schafer, Jr. By His Father and Natural Guardian William Schafer, Sr. v. the Board of Cooperative Educational Services of Nassau County (Nassau Boces

November 15, 2012

WILLIAM SCHAFER, JR. BY HIS FATHER AND NATURAL GUARDIAN WILLIAM SCHAFER, SR. AND HIS MOTHER AND NATURAL GUARDIAN JANET SCHAFER, WILLIAM SCHAFER, SR., JANET SCHAFER FOR THEIR SON AND FOR THEMSELVES, PLAINTIFFS,
v.
THE BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF NASSAU COUNTY (NASSAU BOCES), DEFENDANT.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:

ORDER ON DEFENDANT'S MOTION IN LIMINE

This case involves the appropriateness of Defendants' placement of Plaintiff William Schafer, Jr. ("Billy Schafer"), a developmentally disabled child, in a "timeout room" at the Rosemary Kennedy School (the "Kennedy School"). The Kennedy School is operated by Defendant The Board of Cooperative Educational Services of Nassau County (Nassau BOCES) (hereinafter "BOCES" or "Defendant"). The claims that remain to be tried in this case are Plaintiffs' federal § 1983 Fourth Amendment claim and Plaintiffs' state law claims for false imprisonment, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. DE 95 at 54-55.

Before the Court at this time is Defendant's motion in limine seeking to exclude

(1) regulations promulgated by the New York State Department of Education ("NYSDE") concerning the use of timeout rooms after Billy Schafer left the Kennedy School, and

(2) BOCES' new policies on the use of timeout rooms adopted in response to those regulations. Defendant contends that any references to these materials should be excluded pursuant to Federal Rule of Evidence 407 since they are evidence of subsequent repairs and remedial measures. Plaintiffs argue that the materials should not be excluded since they fall under the exception to Rule 407 for evidence that is used to prove the feasibility of precautionary measures. For the reasons that follow, Defendant's motion is DENIED with respect to the NYSDE regulations and GRANTED with respect to BOCES' new policies on timeout rooms.

There are two categories of evidence at issue here: (1) NYSDE regulations*fn1 and (2) BOCES' polices initiated in response to the promulgation of the Regulations. Beginning with the regulations, the Court concludes that this evidence is not barred by Rule 407. Federal Rule of Evidence 407 provides as follows:

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

* negligence;

* culpable conduct;

* a defect in a product or its design; or

* a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or--if disputed--proving ownership, control, or the feasibility of precautionary measures.

The NYSDE regulations were implemented by the New York Commissioner of Education, not BOCES. See Nagler Decl., Ex. D at 1. "[C]courts have unanimously held that Rule 407 does not bar evidence of subsequent remedial measures by non-defendants." Lion Oil Trading & Transp., Inc. v. Statoil Marking and Trading (US) Inc., No. 08-CV-11315, 2011 WL 855876, at *7 (S.D.N.Y. Feb. 28, 2011); see also Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 888 (9th Cir. 1991); World Boxing Council v. Cossell, 715 F. Supp. 1259, 1267 (S.D.N.Y. 1989). Because the regulations were promulgated by a non-defendant, the Court finds that Rule 407 does not apply here.

The second category of evidence -- BOCES' policies adopted in response to the new NYSDE regulations -- is, however, barred by Rule 407. Although the Court could not locate any cases addressing this specific type of evidence, and neither Defendant nor Plaintiffs point to any, several cases are instructive by way of analogy. In Hamilton v. City of New York, an employment discrimination case, the Second Circuit ruled that the district court properly excluded evidence showing that the city employer changed its promotion policy after plaintiff challenged the city's decision with respect to his promotion, holding that such evidence "plainly runs afoul of Rule 407." 627 F.3d 50, 53 (2d Cir. 2010). Similarly, in Peck v. Hudson City School District, the court granted a motion in limine in a Title VII case, excluding evidence of changes in a school's sexual harassment policy subsequent to the filing of the plaintiff's complaint. 100 F. Supp. 2d 118, 122 (N.D.N.Y. 2000). Finally, in Eng v. Scully, a ยง 1983 excessive force case, the court held that ...


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