Brandon Marshall Limine Motion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Christin Ambrocia Myles, ) ) Plaintiff, ) ) vs. ) ) Brandon Marshall, ) ) Defendant. )

13 Civ. 8096 (GBD)(RLE)

Defendants Combined Motions in Limine

COMES NOW Springer & Steinberg, P.C. on behalf of Defendant Brandon

Marshall, who submits the following Motions in Limine to preclude certain evidence

at trial.

CONFERRAL

On December 21, 2015, the undersigned sent an email to Plaintiff outlining

each proposed motion and a general basis for each motion. Plaintiff did not respond.

On December 29, 2015, a draft of this motion was sent to Plaintiff for her review prior

to filing (including unpublished case law cited within). Plaintiff has not responded

as of the date of this motion. Counsel for Defendant assumes the relief is opposed.

PROCEDURAL BACKGROUND

Trial is set for 5 days beginning February 22, 2016. A telephonic pre-trial

conference is set for January 26, 2016.

Case 1:13-cv-08096-GBD-RLE Document 87 Filed 01/04/16 of 17

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This case arises from an incident that took place on March 12, 2012 outside a

New York nightclub called the Marque. Plaintiff was hit in the eye during an

altercation she instigated. She claims that Defendant hit her. Defendant denies he

hit her. Plaintiff brings claims for assault, battery, negligent infliction of emotional

distress, and intentional infliction of emotional distress. The issues at trial are

whether Defendant was the person who hit Plaintiff, and, if a jury were to find he

did, what are her damages. The parties have stipulated to the introduction of a

security video partially showing the incident and to certain photographs.

In the Proposed Joint Pretrial Order, Plaintiff has identified the following

exhibits she intends to offer: a voicemail, images from the security video with

markings she put on the images, and medical records. Defendant objects to the

introduction of these exhibits. Defendant further objects to the introduction of the

following evidence that Plaintiff has indicated she intends to submit:

Evidence that Defendant has been diagnosed with a personality disorder;

Evidence related to prior arrests and actions taken by the NFL;

Evidence of costs and expenses related to prosecuting this lawsuit;

Evidence of costs and expenses to relocate to California, allegedly due to media attention from this incident;

Evidence she may suffer from future medical problems and requires future medical treatment and damages related thereto;


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Plaintiff has not disclosed any medical experts, expert reports, or listed any

witness qualified to testify about any medical issues. Attached as Exhibit A, is a copy

of Plaintiff’s disclosure pleading.

MOTIONS IN LIMINE Motions in limine enable the Court to rule on disputes over the admissibility

of discrete items of evidence. See TVT Records v. Island Def Jam Music Group, 250

F.Supp.2d 341, 344 (S.D.N.Y. 2003). See also Fed.R.Evid. 104 (“The court must decide

any preliminary question about whether a witness is qualified, a privilege exists, or

evidence is admissible.”). Such rulings “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 quotation marks

and citation omitted). “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). Courts may reserve judgment

until trial or change rulings as the case unfolds. See id.

To be admissible, evidence must be relevant. Fed R. Evid. 402. Federal Rule

of Evidence 401 provides that evidence is relevant if “(a) it has any tendency to make

a fact more or less probable than it would be without the evidence; and (b) the fact is

of consequence in determining the action.” Fed R. Evid. 401. Furthermore, relevant

evidence may still be excluded if the probative value of the evidence is substantially


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outweighed by any potential for “unfair prejudice, confusing the issues, misleading

the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

Fed. R. Evid. 403.

Evidence related to a person’s character is also excluded under certain

circumstances. “Evidence of a person's character or character trait is not admissible

to prove that on a particular occasion the person acted in accordance with the

character or trait.” Fed. R. Evid. 404(a). Evidence of prior acts cannot be admitted if

offered “to prove a person's character in order to show that on a particular occasion

the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1); see also

Lewis v. Velez, 149 F.R.D. 474, 479 (S.D.N.Y. 1993) (citing United States v. Whalen,

940 F.2d 1027, 1034 (7th Cir.)) for the proposition that in assault cases, evidence of a

prior assault is not relevant except to show propensity for violence and must therefore

be excluded) (a copy of this case is attached here as Exhibit B). Although prior “bad

acts” may be offered for other purposes, such purposes must be at issue. See Lewis,

149 F.R.D. at 479. Specific criminal convictions are also inadmissible unless offered

to attack a witness’s truthfulness and otherwise meets the requirements of Federal

Rule of Evidence 609. See Fed. R. Evid. 609.

Certain matters require expert testimony offered pursuant to Federal Rule of

Evidence 702. See Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2nd Cir. 2004)

(expert testimony may be required to establish the nexus between the injury and the

alleged cause if such nexus would not be obvious to the lay juror.) Although opinions


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may be offered by lay persons, such opinions must have the proper foundation. See

Fed. R. Evid. 701 (“If a witness is not testifying as an expert, testimony in the form

of an opinion is limited to one that is: (a) rationally based on the witness's perception;

(b) helpful to clearly understanding the witness's testimony or to determining a fact

in issue; and (c) not based on scientific, technical, or other specialized knowledge

within the scope of Rule 702.”); see also United States v. Garcia, 413 F.3d 201 (2nd

Cir. 2005) (examining each foundational element for admission of lay opinions.)

Hearsay is not admissible to prove the truth of the matter asserted in the

statement, unless otherwise excepted such as pursuant to Federal Rule of Evidence

803. See Fed. R. Evid. 802. Hearsay “means a statement that: (1) the declarant does

not make while testifying at the current trial or hearing; and (2) a party offers in

evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid.

802(c).1

Documents offered into evidence must be authenticated. See Fed. R. Evid.

901(a) (“To satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a finding that

the item is what the proponent claims it is.”); see also United States v. Vayner, 769

F.3d 125, 129 (2nd Cir. 2014) (noting that authentication is a condition precedent to

1 Certain statements are not defined as “hearsay,” such as statements by a party-opponent.

See Fed. R. Evid. 801(d)(2).


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admitting evidence.) Although the bar is not high, there must be sufficient proof that

a reasonable juror could find in favor of authenticity. See Vayner, 769 F.3d at 130.

As set forth below, and pursuant to the Rules noted above, the challenged

evidence is inadmissible and should be excluded at trial.

I. Motion in Limine to exclude evidence of Defendant’s borderline personality disorder. Plaintiff may seek to introduce evidence of Defendant’s borderline personality

disorder.2 This evidence should be excluded as irrelevant pursuant to Federal Rule

of Evidence 402 because the Defendant’s mental health generally does not make it

more or less likely that he punched Plaintiff. Furthermore, if admitted, there is a

significant possibility of confusion by the jury and prejudice to Defendant. See Fed.

R. Evid. 403. The jury could conclude (as Plaintiff mistakenly has) that Defendant’s

personality disorder leads to violence.

Furthermore, such evidence should be excluded as improper evidence of a

character trait if offered to prove that Defendant’s specific condition causes violent

behavior and did so on this particular instance. See Fed. R. Evid. 404(b).

Additionally, even if such evidence was not excluded for the reasons set forth

above, the evidence should be excluded because it would require an expert to testify

to about the condition, how it manifests itself, and that it can cause a person to act

violently. Fed. R. Evid. 702. Finally, there is not and will not be any admissible

2 Defendant does not deny that he has been diagnosed with a borderline personality disorder

and that information is public knowledge.


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evidence that Defendant’s specific personality disorder would cause him to strike

Plaintiff. There is no evidence whatsoever that Defendant’s personality disorder

makes Defendant violent; thus, there are no permissible purposes for introducing

such evidence, and it should be excluded.

II. Motion in Limine to exclude evidence of Defendant’s prior arrests, and violations of NFL codes of conduct.

Plaintiff may seek to introduce evidence of Defendants prior arrests and one

conviction. He was charged with and convicted of Driving While Ability Impaired.

He was arrested for but never convicted of assault-domestic violence. The NFL

imposed sanctions for his DWAI conviction.

Such evidence is irrelevant and if admitted would be highly prejudicial. Those

events took place under completely different circumstances have nothing to do with

this particular incident. It is also inadmissible character evidence to show that

because Defendant was arrested in the past and disciplined for allegedly assaultive

behavior, he acted violently in this situation. Fed. R. Evid. 404(b). Furthermore,

evidence of misdemeanor arrests are generally not admissible. Nibbs v. Goulart, 822

F. Supp. 2d 339, 344, 349 (S.D.N.Y. 2011) (holding that a plaintiff’s arrest history and

history of violations in a § 1983 case was irrelevant to any purpose permissible under

FRE 404(b), had no value as impeachment material, and because there is a higher

risk of prejudice when there is a similarity between the prior conduct and alleged

conduct at issue, and also excluding evidence of the disciplinary history of police


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officers). None of the alleged arrests relate to or are probative of Defendant’s

truthfulness either. See Fed. R. Evid. 609.

III. Motion in Limine to exclude evidence related to any treatment or care provided to Defendant while he participated in NFL mandated programs related to the foregoing incidents. Plaintiff may seek to introduce evidence related to care that was provided to

Defendant while he was participating in NFL-mandated programs arising from the

issues referenced above. Specifically, Plaintiff may seek to elicit testimony related to

treatment provided by Dr. Kennedy, Dr. Hickman, and Dr. McBride.3

For the same reasons set forth in Motion II above, any information related to

arrests or sanctions that are inadmissible means that any treatment related to those

events must necessarily be inadmissible because it would evidence of events whose

occurrence is inadmissible. Furthermore, as noted above, Plaintiff cannot introduce

any evidence that such treatment has any relevance to the specific incident alleged,

she has no personal knowledge of the treatment, and everything that occurred during

those sessions is privileged and hearsay. No exceptions to the hearsay rule exist that

would permit her to introduce evidence related to statements made by the treatment

providers.

3 No information has been provided or disclosed by Plaintiff with respect to these doctors and

they are not listed as witnesses.


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IV. Motion in Limine to exclude Plaintiff’s medical records and bills. Plaintiff has disclosed unauthenticated medical records and has listed no

doctors as witnesses and has not otherwise disclosed any evidence related to their

authenticity. Specifically, Plaintiff seeks to introduce the following records:

1) A letter dated March 13, 2012, from Harlem Vision Center signed by Jaclyn

Benzoni, O.D. (a copy of which is attached as Exhibit C.)

2) A letter dated March 16, 2012, from Northeast Anesthesia & Pain

Management relating to an “initial evaluation” signed by Anson Moise,

M.D. (a copy of which is attached as Exhibit D.)

3) A letter dated March 20, 2012, from Harlem Vision Center signed by Jaclyn

Benzoni O.D. (a copy of which is attached as Exhibit E.)

4) A letter dated April 4, 2012, from Northeast Anesthesia & Pain

Management relating to a “Follow up evaluation,” signed by Anson Moise,

M.D. (a copy of which is attached as Exhibit F.)

5) An letter from Northeast Anesthesia & Pain Management relating to a

“Follow up,” show DOS 04/04/2012, signed by Anson Moise, M.D. (a copy of

which is attached as Exhibit G.)

6) An undated document from the California Surgical Institute quoting

$3,800.00 for cosmetic surgery for reconstruction of the left upper eyelid. (a

copy of which is attached as Exhibit H.)


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These mostly letters that should be excluded because they are not and cannot

be authenticated. Plaintiff’s medical records/letters should also be excluded because

they are hearsay. The letters contain statements made by the purported author

relating to the author’s observations, diagnosis, and statements made to Plaintiff

regarding suggested treatment. In the absence of testimony by a doctor, Plaintiff

cannot lay the foundation for the business records exception pursuant to Fed. R. Evid.

803(6)). See Tutora v. Corr. Med. Care, Inc., No. 9:10-CV-0207 MAD/TWD, 2012 WL

1898871, at *2 (N.D.N.Y. Apr. 30, 2012) report and recommendation adopted, No.

9:10-CV-207 MAD/TWD, 2012 WL 1898915 (N.D.N.Y. May 23, 2012) (holding that

medical records not supported by any custodial affidavit and have not been certified

are not admissible and therefore were not considered in ruling on a motion for

summary judgment.). These are for the most part, letters rather than the kinds of

records that one might expect would be kept in the normal course of business.

Regardless, whether these letters are kept in the normal course of business or the

purpose the letters were written cannot be established by Plaintiff.

Furthermore, although Fed. R. Evid. 803(4) (statements made for medical

diagnosis) might apply to some of Plaintiff’s likely testimony about her condition, it

does not apply to statements made by doctors. See Jackson v. Kaufman, No. 13 CIV.

6544 PAC DF, 2015 WL 5521432, at *9 (S.D.N.Y. Sept. 18, 2015) (a copy of which is

attached here as Exhibit I) (not considering medical records because they were

hearsay and not in an admissible form); Stull v. Fuqua Indus., Inc., 906 F.2d 1271,


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1274 (8th Cir. 1990) (statements made by doctor in report that could not be attributed

to patient were not excepted and properly excluded). Furthermore, Plaintiff has no

personal knowledge of what the doctors observed and reported about her, and so she

cannot establish that the statements regarding their observations are true, and

therefore they are not admissible pursuant to Fed. R. Evid. 803(1) (present sense

impression).

With respect to the bill for cosmetic surgery, that is unauthenticated and pure

hearsay and could only be offered to prove the cost of cosmetic surgery. The document

is undated, but presumably it was given to Plaintiff in 2012. If so, it is too old to be

relevant, is hearsay, and no hearsay exceptions apply or can be established.

Plaintiff has not disclosed or provided any evidence regarding any bills she

actually paid. In fact, at her deposition Plaintiff refused to provide any figure related

to how much her medical bills are, or that she would claim at trial. See Pl. Depo. at

90:15-91:22 (explaining that she does not know what her damages are and that she

has not determined her damages because it is not important to get money damages)

(excerpt attached here as Exhibit J).

Accordingly, she should be precluded from testifying about any amount of

money damages regarding her medical bills. See Fed. R. Civ. P. 37 (one sanction for

failing to disclose evidence is preclusion at trial); see also Design Strategy, Inc. v.

Davis, 469 F.3d 284, 296 (2nd Cir. 2006)(directing trial courts considering excluding

evidence for failure to disclose to consider “’(1) the party's explanation for the failure


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to comply with the [disclosure requirement]; (2) the importance of the testimony of

the precluded [evidence]; (3) the prejudice suffered by the opposing party as a result

of having to prepare to meet the new testimony; and (4) the possibility of a

continuance.’”) (quoting Patterson v. Balsamico, 440 F.3d 104 (2nd Cir. 2006)). None

of the factor recounted in Design Strategy weigh in favor of admitting purposefully

undisclosed evidence that is otherwise inadmissible.

V. Motion in Limine to exclude evidence related to medical causes for claimed injuries including “photophobia,” “diplopia,” “disrupted sleep,” “distorted vision,” “sensitivity to light,” neck pain, and back pain. For the reasons set forth in Motions I and III above, statements made by

doctors regarding specific medical conditions should be excluded. Additionally,

Plaintiff should be prevented from testifying at trial about medical conditions for

which there is no admissible evidence showing they caused of her claimed injuries.

Such opinion testimony requires a doctor or other expert to provide. See Fed. R. Evid.

702.

Plaintiff lacks sufficient knowledge and experience to provide such opinions

herself pursuant to Fed. R. Evid. 701. Additionally, statements made to her by

doctors are hearsay and Plaintiff cannot establish the foundation necessary to

indicate that the doctor’s statements made in letters are accurate and not themselves

statements of possible (speculative) causes, as opposed to causes they would testify

are directly attributable to Plaintiff’s complaints.


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VI. Motion in Limine to exclude evidence of Plaintiff’s claim for damages associated with leaving New York as a result of “media attention.” Plaintiff seeks to introduce evidence that she lost money moving to California

due to the media attention that was given to this incident. In essence Plaintiff is

seeking consequential damages arising from the incident. The overwhelming

majority of consequential damages cases involve contract or contract-like disputes.

Consequential damages are available only if there is evidence that the alleged act by

the defendant caused the claimed damages. See Pitter v. Metro-N. Commuter R.R.,

826 F. Supp. 2d 612, 616 (S.D.N.Y. 2011).

In tort cases, courts have addressed medical monitoring as a form of

consequential damages that may be recoverable so long as there is a causal

connection between the allegedly tortious act and there is more than just a financial

injury. See Caronia v. Philip Morris USA, Inc., 22 N.Y.3d 439, 452, 5 N.E.3d 11, 18

(2013) (holding that, absent any evidence of present physical injury or damage to

property, there is no cause of action for medical monitoring). In Abusio v. Consol.

Edison Co. of New York, 238 A.D.2d 454, 455, 656 N.Y.S.2d 371, 372 (1997), the

appellate court held that damages arising from the fear of cancer were not recoverable

unless there was a “rational basis” for their fear of developing the disease. See also

Caroina, 22 N.Y.3d at 448-49 (discussing Abusio).

Generally, New York law stands for the proposition that consequential

damages are awardable only if there is a sufficient link between the consequence, the

alleged tort, and the actual damage.


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Here, Plaintiff was hit in the eye and Defendant was investigated; no charges

were ever brought. Because he is a well-known personality, the press picked up the

story. Plaintiff claims she was upset by the press coverage and made a decision to

move to California. As damages, she seeks moving costs. Other than the unfounded

allegation that Defendant hit Plaintiff, the actions of the press and Plaintiff’s own

subsequent decision to move for emotional reasons have no causal connection to any

act by Defendant, let alone the alleged punch. Nor is there a reasonable basis for

Plaintiff to believe that her fear of the press would be on-going. Indeed, there is no

evidence that the press covered the situation following the police’s decision not charge

Defendant. Thus, to the extent that the “rational basis” element applies in this

circumstance, it cannot be met. Accordingly, all evidence related to her moving to

California as a result of the incident and all damages related to moving should be

excluded from trial.

VII. Motion in Limine to exclude evidence of costs and expenses related to bringing this case including travel costs, missed time from work, costs associated with “legal assistance” Plaintiff seeks to introduce evidence of the amounts she has paid to prosecute

this case, including time off work. Plaintiff is not entitled to seek litigation expenses

as damages in this case and so such evidence is irrelevant and should be excluded.

C.f. Versatile Housewares & Gardening Sys., Inc. v. Thill Logistics, Inc., 819 F. Supp.

2d 230, 244 (S.D.N.Y. 2011) (noting that under New York law, there is no support for


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the proposition that litigation expenses are a measure of damages absent

circumstances not present here).

VIII. Motion in Limine to exclude evidence of Plaintiff’s claim for damages associated with alleged future medical treatment. Plaintiff claims that she will need cosmetic surgery at some point in the future.

Evidence of future medical care and its costs requires a medical expert. See Fed. R.

Evid. 702; see also Angamarca v. New York City P'ship Hous. Dev. Fund, Inc., 87

A.D.3d 206, 209, 927 N.Y.S.2d 2, 5 (2011) (trial court properly excluded speculative

evidence regarding the costs of future medical care due to late disclosure and lack of

evidence that would have guided the jury in determining the cost of plaintiff's future

medical expenses in another country); Buggs v. Veterans Butter & Egg Co., 120

A.D.2d 361, 502 N.Y.S.2d 12, 13 (1986) (in the absence of testimony from a medical

doctor regarding the costs of future medical care, the jury's award regarding future

medical costs was based entirely upon uninformed speculation and therefore striking

the award of future medical costs from damage award).

Plaintiff is not calling any doctors or experts to testify about future medical

care. Additionally, any statements made to Plaintiff regarding her medical care are

hearsay. As noted above, statements by doctors are not excepted from the hearsay

rule. Thus, there will be no admissible evidence sufficient for a jury to make any

determination that Plaintiff needs future medical care or how much such care would

cost. Exhibit H, the document purportedly setting forth such costs is, for the reasons


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set forth above, inadmissible. Therefore, all evidence of future medical care should

be excluded.

IX. Motion in Limine to exclude evidence of or related to an alleged voicemail message.

Plaintiff listed am unauthenticated voicemail message she claims to have

received from a person who identified himself as Raymond Edwards as an exhibit she

intends to introduce at trial. No recording has been provided or disclosed to

Defendant by Plaintiff and should be excluded on that basis.

Furthermore, assuming it will be produced at trial, Plaintiff cannot

authenticate the voicemail. See Vayner, 769 F.3d. at 130 (holding that a mere

assertion of identity by a person on the telephone is not in itself sufficient to

authenticate that person’s identity and holding that additional evidence is required

to establish a foundation of authenticity). Finally, it is hearsay not subject to any

exceptions. Therefore, the voicemail should be excluded from trial.

CONCLUSION

For the reasons set forth above, Motions in Limine I-IX should be granted and

the subject evidence excluded from trial.

Dated this 4th day of January, 2016. Respectfully Submitted, _/s/ Jason C. Astle__________________

Jason C. Astle SPRINGER AND STEINBERG, P.C. 1600 Broadway Suite 1200


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Denver, Colorado 80202 Phone Number: (303) 861-2800 Fax Number: (303) 832-7116 E-mail: [email protected] ATTORNEYS FOR DEFENDANT

To: Christin Ambrocia Myles

4185 Mandarin Terrace San Diego CA 92115 [email protected] [email protected]


Brandon Marshall Limine Motion

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