United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN United States District Judge.
anticipation of trial scheduled to begin on May 30, 2017, on
Plaintiff Jennifer Yang's claims for violations of the
anti-retaliation provision of the Sarbanes-Oxley Act, 18
U.S.C. § 1514A, and the whistleblower protection
provision of the Dodd-Frank Act, 15 U.S.C. § 78u-
6(h)(1), by her former employer Defendant Navigators Group,
Inc., Plaintiff and Defendant have each moved in
limine to preclude the other from introducing certain
evidence at trial and to allow certain testimony to be
received via live videoconferencing rather than in person.
following reasons, the motions are GRANTED in part and DENIED
motions in limine (ECF No. 112) seek to preclude a)
defense expert Chad Staller from testifying at trial with
regard to Plaintiffs efforts to mitigate her damages and b)
defense witnesses from testifying at trial via live
videoconferencing. Defendant's motion in
limine (ECF No. 115) seeks to preclude Plaintiff
from introducing any evidence related to her alleged
reputational loss. As a preliminary matter, by letter dated
May 5, 2017, Plaintiff noted she had "withdrawn her
reputation loss claim which was the subject of
Defendant's motion[.]" (Pl. Reply at 2.) Thus,
Defendant's unopposed motion is moot: Plaintiff has
agreed to not introduce any exhibits or testimony relating to
any alleged reputational loss, and the Court will enforce
remaining issues for the Court to decide are whether the
defense expert should be permitted to testify at trial
regarding the sufficiency of Plaintiff s mitigation efforts
and whether certain defense witnesses should be permitted to
testify via live video-conferencing.
STANDARDS GOVERNING PRELIMINARY RULINGS ON THE ADMISSIBILITY
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." Palmieri v.
Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (internal
citation and quotation marks omitted); see generally Luce
v. United States, 469 U.S. 38 (1984). Upon such a
motion, the Court is called upon "to make a preliminary
determination on the admissibility of the evidence under Rule
104 of the Federal Rules of Evidence." Highland
Capital Mgmt., L.P. v. Schneider, 379 F.Supp.2d 461, 467
(S.D.N.Y. 2005). Only evidence that is "clearly
inadmissible on all potential grounds" should be
excluded on a motion in limine. United Slates v.
Paredes, 176 F.Supp.2d 179, 181 (S.D.N.Y. 2001)
(internal citations omitted).
Court generally looks to Rules 401, 402, and 403 of the
Federal Rules of Evidence to determine whether the contested
evidence is admissible at trial. Under Rule 402, only
relevant evidence is admissible. Evidence is relevant if
"it has any tendency to make a fact more or less
probable than it would be without the evidence . . . and the
fact is of consequence in determining the action."
Fed.R.Evid. 401. Relevant evidence may still be excluded by
the Court "if its probative value is substantially
outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting
cumulative evidence." Fed.R.Evid. 403. Though the
"standard of relevance established by the Federal Rules
of Evidence is not high, " United States v.
Southland Corp., 760 F.2d 1366, 1375 (2d Cir. 1985), the
Court has "broad discretion to balance probative value
against possible prejudice" under Rule 403. United
States v. Benmtdez, 529 F.3d 158, 161 (2d Cir. 2008)
(citing United States v. LaFlam, 369 F.3d 153, 155
(2d Cir. 2004)); see also Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 384 (2008) (quoting United
States v. Abel, 469 U.S. 45, 54 (1984)) ("Assessing
the probative value of [the proffered evidence], and weighing
any factors counseling against admissibility is a matter
first for the district court's sound judgment under Rules
401 and 403").
Court does not have the benefit of viewing the proposed
evidence in the context of trial, an in limine
ruling may be "subject to change when the case unfolds,
particularly if the actual testimony differs from what was
contained in the [party's] proffer."
Paredes, 176 F.Supp.2d at 181 (quoting
Luce, 469 U.S. at 41). Similarly, "[i]f the
potential relevance of evidence is uncertain prior to trial,
the court may choose to reserve judgment." Goodwine
v. National R.R. Passenger Corp., No. 12 Civ. 3882
(TLM), 2014 WL 1010928, at *1 (E.D.N.Y. Mar. 17, 2014)
(citing Bonilla v. Janovick, No. 01 Civ. 3988 (SJF)
(ETB), 2007 WL 3047087, at *2 (E.D.N.Y. Oct. 16, 2007)).
defendant employer bears the evidentiary burden to show
failure to mitigate by the employee. See Greemvay v.
Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir, 1998). A
wrongfully terminated employee '"must use reasonable
diligence in finding other suitable employment, ' which
need not be comparable to [her] previous positions."
Id. (internal citation omitted). "Generally
speaking, this requires the employer to show that suitable
work exists in the marketplace and the discharged employee
'has not made reasonable efforts to find it.'"
Roniger v. McCall, No. 97 Civ. 8009 (RWS),
2000 WL 1191078, at *3 (S.D.N.Y. Aug. 22, 2000) (quoting
Greemvay, 143 F.3d at 53). Nevertheless, "there
is an exception to the requirement that the employer
establish the availability of comparable employment 'if
it can prove that the employee made no reasonable efforts to
seek such employment.'" Id. (quoting
Greemvay, 143 F.3d at 54). Clearly testimony
relating to an employee's efforts-and the reasonableness
of those efforts-to secure alternative employment is relevant
to and thus potentially admissible on the issue of
motion to preclude proffered expert Staller's testimony
is premised on his purported lack of expertise regarding job
searches and the current lack of sworn testimony regarding
the facets of Plaintiff s particular job search.
(See PI. Reply at 1.) Plaintiffs one-page argument,
though sounding vaguely like a Daubert motion, does
not cite Daubert v. MerrellDow Pharm.,
Inc.,509 U.S. 579, 590 (1993), its progeny, or Federal
Rule of Evidence 702. Instead, Plaintiff simply argues in a
conclusory fashion that Staller's opinion testimony
consists of "pure conjecture, " given his lack of
experience and the lack of available information upon which
to base such an opinion, and would "intrude upon the
proper province of the jury as fact finder." (PI. Mem.
at 2.) Defendant counters that "Mr. Staller
analyzed various guidelines by the U.S. ...