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Yang v. Navigators Group, Inc.

United States District Court, S.D. New York

May 18, 2017

JENNIFER YANG, Plaintiff,
v.
NAVIGATORS GROUP, INC., Defendant.

          OPINION & ORDER

          NELSON S. ROMAN United States District Judge.

         In 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.

         For the following reasons, the motions are GRANTED in part and DENIED in part.

         OVERVIEW[1]

         Plaintiffs 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.[2] Defendant's motion in limine (ECF No. 115) seeks to preclude Plaintiff from introducing any evidence related to her alleged reputational loss.[3] As a preliminary matter, by letter dated May 5, 2017, Plaintiff noted she had "withdrawn her reputation loss claim which was the subject of Defendant's motion[.]"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 that agreement.

         The 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.

         LEGAL STANDARDS GOVERNING PRELIMINARY RULINGS ON THE ADMISSIBILITY OF EVIDENCE

         "The 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).

         The 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").

         As the 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)).

         DISCUSSION

         I. Mitigation Expert

         A 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 mitigation.

         Plaintiffs 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.)[4] Defendant counters that "Mr. Staller analyzed various guidelines by the U.S. ...


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