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Reynolds v. American Airlines, Inc.

United States District Court, E.D. New York

November 21, 2017



          Cheryl L. Pollak United States Magistrate Judge Eastern District of New York

         On February 24, 2014, plaintiff Janet Reynolds commenced this action against defendant American Airlines, Inc. (“defendant” or “American Airlines”) in the Supreme Court of the State of New York, Queens County, seeking damages for personal injuries she allegedly suffered when the right rear door of an American Airlines 767 airplane fell down on her back, knocking her to the floor of the plane. Defendant removed the action to the Eastern District of New York on April 15, 2014. On May 13, 2014, the parties consented to proceed before the undersigned. Trial is scheduled to commence on November 27, 2017.

         Currently pending before the Court are the parties' pre-trial motions in limine, as well as plaintiff's motion for a missing witness charge.


         A. Legal Standards

         1. Motions in limine

         “Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 40 n.4 (1984). “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.” Jean-Laurent v. Hennessy, 840 F.Supp.2d 529, 536 (E.D.N.Y. 2011); accord Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (explaining that in limine rulings “aid the trial process” by providing the court with the opportunity to decide the issue of admissibility “without lengthy argument at, or interruption of, the trial”). “Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds.” United States v. Paredes, 176 F.Supp.2d 179, 181 (S.D.N.Y. 2001). Thus, the party moving in limine “bears the burden of establishing that evidence is inadmissible for any purpose and so properly excluded[.]” United States v. Johnson, No. 16 CR 457, 2017 WL 5125770, at *2 (E.D.N.Y. Sept. 21, 2017). “Courts considering a motion in limine may reserve decision until trial, so that the motion is placed in the appropriate factual context.” United States v. Johnson, 2017 WL 5125770, at *2 (quoting Jean-Laurent v. Hennessy, 840 F.Supp.2d at 536). “The ruling is subject to change when the case unfolds[;] [i]ndeed, even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.” Luce v. United States, 469 U.S. at 41-42.[1]

         2. Expert Witnesses

         Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

         Fed. R. Evid. 702. The text of Rule 702 makes it clear that there are two prerequisites that must be met before the testimony of an expert witness can be admitted into evidence. First, the trial court must ensure that the witness is properly qualified as an expert to testify on matters that are scientific, technical, or specialized in nature, see Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81(2d Cir. 1997); and second, the trial court must determine that the expert's testimony will assist the trier of fact in understanding the evidence or determining an issue of fact. See Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 184-85 (2d Cir. 2001) (noting that determining whether expert testimony will assist the fact finder “‘entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue'”) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993)); United States v. 31-33 York Street, 930 F.2d 139, 141 (2d Cir. 1991) (excluding expert testimony that would only complicate, not assist, the jury's decision on “a simple question for which the jury needed no help”); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).

         In short, the trial court functions in a “gatekeeping” capacity and must ensure “that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 597; see also Zuchowicz v. United States, 140 F.3d 381, 386 (2d Cir. 1998); Borgognone v. Trump Plaza, No. 98 CV 6139, 2000 WL 341135, at *3 (E.D.N.Y. Mar. 9, 2000); Textron, Inc. v. Barber-Colman Co., 903 F.Supp. 1546, 1552 (W.D. N.C. 1995). The question of the admissibility of expert testimony is for the trial judge to resolve and the court has “broad discretion” in making that determination. United States v. Feliciano, 223 F.3d 102, 120 (2d Cir. 2000), cert. denied, 532 U.S. 943 (2001); Palazzetti Import/Export, Inc. v. Morson, No. 98 CV 722, 2001 WL 793322, at *2 (S.D.N.Y. July 13, 2001).

         B. Plaintiff's Motions in Limine

         On November 3, 2017, the plaintiff filed her omnibus motion in limine seeking to limit the introduction of testimony from various witnesses and documents from various sources. (See Pl.'s MIL, [2] Nov. 3, 2017). The Court addresses each request in turn.

         1. Motions to Preclude Expert Testimony

         a. Motion to Preclude the Testimony of William Meyer, P.E.

         Plaintiff moves to bar the testimony of defendant's liability expert, William Meyer, P.E., on biomechanics, impact kinematics, and injury causation and to further preclude defendant from offering these theories as affirmative defenses. (See Pl.'s MIL at 1-4). Plaintiff argues that this expert testimony is “unreliable, ” because the witness failed to inspect the airplane door immediately after the accident and he based his analysis on insufficient facts and data. (Id. at 3). She further contends that such testimony is beyond the witness' expertise because he is not a medical doctor and cannot opine on the cause of medical injuries, nor is he a biomechanical expert, and thus his testimony would not be helpful to the trier of fact. (See id. at 3-4).

         In her motion, plaintiff seems to focus on one sentence at the end of Mr. Meyer's report that states: “ Ms. Reynolds['] alleged accident does not comport with a kinematic analysis of the event based on her described movement and point of contact and the characteristics of the door open.” (Meyer Report at 5, Ex. A to Pl.'s MIL, ECF No. 87-1). A review of the entire report demonstrates that Mr. Meyer's analysis, apart from this one sentence, does not provide an analysis of how the door caused the specific medical injuries that plaintiff is claiming which would be consistent with a biomechanical expert's opinion. Instead, Meyer's report focuses on the mechanics of the door and the physics of how the door opens and descends. As a professional engineer, Mr. Meyer is qualified to make such an analysis and to opine on the way in which the door would have descended in relation to an individual moving through or standing underneath it. Apart from his training and education as an engineer, Mr. Meyer's curriculum vitae indicates that he has had experience in “accident reconstruction, ” and thus is qualified to opine on plaintiff's version of events given the physics of the door's operation and mechanics. (See Meyer CV, Ex. A to Pl.'s MIL).

         Accordingly, the Court denies the motion to preclude Mr. Meyer's testimony except to the extent that he discusses the “kinematic analysis.” In order for the opinion to be helpful to the jury, Mr. Meyer will need to define kinematics and explain what it means. However, to the extent the Court understands that it is a reference to a branch of mechanics that describes the motion of points, objects, and systems of objects, that would be within his expertise as an engineer and would be something to which he could testify upon laying a proper foundation.

         b. Motion to Preclude the Testimony of Joseph Pessalano, M.A., CRC

         Plaintiff also moves in limine to preclude the testimony of Joseph Pessalano, defendant's rehabilitation specialist. (See Pl.'s MIL at 4-5). Plaintiff argues that Pessalano's proposed testimony is unreliable, beyond his expertise, and not helpful to the trier of fact. (Id.) Plaintiff contends that he is not a medical doctor, never personally examined the plaintiff, and cannot opine on the causation of her injuries. (Id.)

         A review of his report, however, demonstrates that Mr. Pessalano does not offer an opinion about the causation of her injuries; his opinion relates to the plaintiff's ability to work at certain jobs. (See Pessalano Report, Ex. B. to Pl.'s MIL, ECF No. 87-2). Vocational rehabilitation specialists regularly testify about a plaintiff's capacity to participate in the workforce based on their physical and mental abilities, the potential for rehabilitation to improve ability to join the workforce, availability of jobs, and the like. See Kavanagh v. Ogden Allie3d Maintenance Corp., 92 N.Y.2d 952, 954-55, 705 N.E.2d 1197, 1198, 683 N.Y.S.2d 156, 157 (1998); see also Morgan v. Jacques, 08 CV 64, 2010 WL 11537864, at *3 n.1 (D. Vt. Oct. 5, 2010) (observing that vocational rehabilitation specialists regularly satisfy Daubert when testifying as to an individual's rehabilitation, access to jobs, placeability in suitable jobs, earning capacity, and labor force participation); but see Thalrose v. United States, No. 85 CV 0142, 1991 WL 148502, at *3 (E.D.N.Y. July 17, 1991) (suggesting the testimony of experts such as vocational rehabilitation specialists is “useless”).

         Moreover, while plaintiff objects to Mr. Pessalano's reliance on the reports of other experts, including the defendant's expert narrative reports, plaintiff fails to cite any provision of the Federal Rules of Civil Procedure that prohibits an expert from reviewing another expert's reports in order to come to his conclusions. In fact, Rule 703 of the Federal Rules of Evidence specifically contemplates that an expert witness may rely on inadmissible facts or data, so long as “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed.R.Evid. 703; see Gill v. Arab Bank, PLC, 893 F.Supp.2d 523, 532 (E.D.N.Y. 2012) (rejecting argument that an expert and his report should be disqualified for reliance on inadmissible hearsay).

         Accordingly, the motion to preclude Mr. Pessalano from testifying is denied.

         c. Motion to Preclude the Testimony of Jessica Berkowitz, M.D.

         Plaintiff seeks to preclude the testimony of defendant's radiological expert, Jessica Berkowtiz, M.D., on the grounds that she is not qualified to opine on the causation of plaintiff's injuries because she never personally examined plaintiff and only reviewed the diagnostic films. (Pl.'s MIL at 5-6). A review of the doctor's report and curriculum vitae indicates that she has specialized training in neuro-radiology and therefore is qualified to review diagnostic films and interpret those films based upon her review. (See Berkowitz Report, Ex. C to Pl.'s MIL, ECF No. 87-3). Her opinion as to whether the injuries she observed on those films were traumatic or degenerative in nature is clearly within the scope of her expertise and training as a medical doctor and radiologist. Nowhere in her papers does plaintiff cite any authority that would support preclusion of a radiologist's testimony based upon the doctor's failure to examine the patient directly.

         Accordingly, the motion to preclude Dr. Berkowitz's testimony is denied.

         2. Motion to Preclude the ...

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