UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK MICHAEL BELVIN, and MICHAEL MAYERS, MEMORANDUM & ORDER Plaintiffs, 17-GV-6303 (NGG) (MMH) -against- ELECTCHESTER MANAGEMENT, LLC, Defendant.
NICHOLAS G. GARAUFIS, United States District Judge. Plaintiffs Michael Belvin and Michael Mayers bring this employ- ment discrimination action against their employer, Defendant Electchester Management, LLC (“EML”). Trial is scheduled to begin in this case on Novernber 2, 2022. Pending before the court are the parties’ motions in limine. (See Pls. Mot. in Limine (Dkt. 74) (“Plaintiffs’ MIL”); Def. First Mot. in Limine (Dkt. 70) (“De- fendant’s First MIL”); Def. Second Mot. in Limine (Dkt. 71) (“Defendant’s Second MIL”); Def. Third Mot. in Limine (Dkt. 72) (“Defendant’s Third MIL”); Def. Fourth Mot. in Limine (Dkt. 73) (“Defendant’s Fourth MIL”).) For the reasons set forth below, Plaintiffs’ MIL is GRANTED IN PART and DENIED IN PART; Defendant’s First MIL is GRANTED; Defendant's Second MIL is DENIED; Defendant’s Third MIL is DE- NIED; and Defendant’s Fourth MIL is DENIED as moct. I. BACKGROUND The court assumes the parties’ familiarity with the factual back- ground and procedural history in this matter and thus will summarize only those facts relevant to the instant motions. Belvin began working as a porter for the Electchester co-op in 1999. (See Dec. 10, 2020 Mem. & Order re Summ. J. (“Summary Judgment Opinion”) at 2.) Mayers started working as a porter for the Electchester co-op in 2004, Ud. at 8.) Both remained in
their positions in 2007, when EML was formed to manage the housing complex. Ud. at 2, 8.) The Plaintiffs brought claims regarding a variety of incidents they claim were discriminatory or retaliatory in nature, or constituted a hostile work environment. These claims were brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; 42 U.S.C. §§ 1981 et seq.; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §8§ 296 et seq.; and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8-101 et seg. Mayers additionally brought claims pursuant to the Americans with Disabilities Act (the “ADA”), 42 ULS.C. 88 12111. Following the Summary Judgment Opinion, the following claims remain at issue: (1) both Plaintiffs’ claims for hostile work envi- | ronment and racial discrimination claims premised on their disparate treatment due to being subjected to a hostile work en- vironment, under Title VII, 42 U.S.C. § 1981, NYSHRL, and NYCHRL; (2) Belvin’s claim for retaliation under Title VI, 42 U.S.C. § 1981, NYSHRL, and NYCHRL; (3) Mayers’s claim for disability discrimination under the ADA and NYCHRL, premised on his termination and denial of bonus; and (4) both Plaintiffs’ claims for garden variety emotional distress damages. Ii. LEGAL STANDARD “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).! “A court will exclude evidence on a motion in limine only if it is clearly
1 When quoting cases, unless otherwise noted, all citations and internal quotation marks are omitted, and all alterations are adopted.
inadmissible on all potential grounds.” Laureano v. City of New York, No. 17-CV-181 (LAP), 2021 WL 3272002, at *1 (S.D.N.Y. July 30, 2021). “[Clourts considering a motion in limine may re- serve decision until trial, so that the motion is placed in the appropriate factual context.” Ohio Cas. Ins. Co. v. Twin City Fire Ins. Co., No. 14-CV-858 (NGG) (PK), 2019 WL 1365752, at *2 (E.D.N.Y. Mar. 26, 2019). At trial, the courts may also exercise discretion “to alter a previous in limine ruling.” Luce v. United States, 469 U.S. 38, 41-42 (1984). Ill. DISCUSSION A. Plaintiffs’ Motion in Limine to Exclude the Testimony of EML’s Expert Psychologist Plaintiffs seek to preclude the testimony and report of EML’s psy- chological expert, Dr. Mark Siegert, Ph.D., in whole or in part. Dr. Siegert produced an expert report in which he detailed May- ers’s psychiatric treatment history and personal history, and the results of Dr. Siegert’s psychological examination of Mayers. (See generally Dkt. 74-2 (“Dr. Siegert’s Report”).) To preclude the en- tirety of the testimony and report, Plaintiffs argue that Dr. Siegert’s Report and any testimony based thereon are irrelevant under Federal Rules of Evidence 401 and 402. (See Plaintiffs’ MIL at 6.) Specifically, Plaintiffs argue that Mayers’s mental health is not at issue unless Plaintiffs plan to put forward their own expert witness, and they disavow any plan to do so. (Id. at 9) As dis- cussed further below, this objection to Dr. Siegert’s testimony is without merit. However, Plaintiffs’ objections to specific portions and conclu- sions of Dr. Siegert’s Report raise significant evidentiary issues. First, Plaintiffs argue that Dr. Siegert’s Report provides impermis- sible conclusions regarding Mayers’s state of mind and credibility _ under Federal Rule of Evidence 702. (Plaintiffs’ MIL at 3-5.) Sec- ond, Plaintiffs argue that Dr. Siegert’s Report provides irrelevant
and unfairly prejudicial information regarding Mayers’s family background, criminal history, and past alcohol and drug use, and should be excluded from evidence pursuant to Federal Rules of Evidence 401, 402 and 403. (Ud. at 6-9.) On both points, Plaintiffs assert that Dr. Siegert should be precluded from testifying re- garding these portions of the report. The court agrees, 1. Relevance of Dr. Siegert’s Report Generally Mayers’s mental health history is plainly relevant to Plaintiffs’ claim for garden variety emotional distress. The Federal Rules of Evidence define relevant evidence as that which “has any ten- dency to make a fact more or less probable than it would be _ without the evidence; and... the fact is of consequence in deter- . mining the action.” Fed, R. Evid. 401 (emphasis added), The © Second Circuit has characterized the bar for relevance as “very . low.” United States v. White, 692 F.3d 235, 246 (2d Cir. 2012); see also Hamza v. Saks Fifth Ave., Inc., No. 07-CV-5974 (FPS), 2011 WL 6187078, at *6 (S.D.N.Y. Dec. 5, 2011) (describing Rules 401 and 402 as “permissive and intended to lead to liberal admission of evidence”). By this low standard, a plaintiffs history of mental illness certainly is relevant to a determination of emo- tional distress damages: diagnoses and symptoms predating the relevant conduct may show the jury that some or all of Mayers’s emotional distress was caused by factors other than EML’s con- . duct. See Hartman v. Snelders, No. 04-CV-1784 (CLP), 2010 WL 11626508, at *21 (E.D.N.Y. Jan. 28, 2010) (holding that a plain- tiffs extensive history of mental illness “is relevant to causation and damages” and denying motion in limine seeking exclusion of such evidence). Expert analysis regarding alternate causes of stress or other negative emotions may similarly affect the jury’s calculation of damages, Id. Plaintiffs’ argument regarding the expert report is premised on a misapplication of the psychotherapist-patient privilege, rather □ than relevancy. That testimonial privilege was established in
Jaffee v. Redmond, See 518 U.S. 1, 9-10 (1996). Like other testi- monial privileges, though, the psychotherapist-patient privilege may be waived, and such waiver may be express or implied, in- cluding by bringing a claim that places the plaintiffs mental health at issue. Id. at 15 n.14; see also In re Sims, 534 F.3d 117, 131-32 (2d Cir. 2008). The issue of whether the privilege applies or has been waived typically arises from an assertion of the priv- ilege in the context of discovery requests for mental health medical records or for a mental examination pursuant to Federal Rule of Civil Procedure 35. See, e.g., Greenberg v. Smolka, No. 03- CV-8572 (RWS) (MHD), 2006 WL 1116521, at *7 (S.D.N.Y. Apr. 27, 2006) (granting protective order against disclosure of com- munications between plaintiff and her psychotherapist); Jarrar v. Harris, No. 07-CV-3299 (CBA) (JO), 2008 WL 2946000, at *7 {E.D.N.Y. July 25, 2008) (denying defendant’s motion to compel. mental examination under Fed. R. Civ. P. 35, which requires the party’s mental condition be “in controversy”). Although early eases “ha[d] not developed a consistent approach to whether and when waiver [of the privilege] is properly inferred,” Hershey-Wd- son v. City of New York, No. 05-CV-2714709 (KMK) (JCF), 2006 “WL 2714709, at *1 (S.D.N.Y. Sept..20, 2006), the Second Circuit has held that a claim for “garden variety” emotional distress dam- ages is insufficient to put the plaintiffs mental health “in controversy” or find implied waiver. Sims, 534 F.3d at 138, 140- 41.7
2 “Claims of emotional distress that are ‘garden variety’ are simpie or usual,” as contrasted with claims (such as intentional or negligent infliction of emotional distress} that a defendant’s actions “result[ed] in a specific psychiatric disorder.” Jessamy v. Ehren, 153 F. Supp. 2d 398, 401 (S.D.N.Y. 2001). In other words, garden variety claims are those which allege that a claimant was “seared, embarrassed, shamed, for] humiliated,” Jarrar vy. Harris, No. 07-CV-3299 (CBA) (JO), 2008 WL 2946000, at *5 (E.D.N.Y. July 25, 2008), as opposed to actions seeking recovery for “serious psycho- logical injury, that is, the inducement or aggravation of a diagnosable
There is no indication in the record that Plaintiffs claim EML’s alleged discrimination caused a “serious psychological injury,” and Plaintiffs have made clear that they do not plan to prove their case with expert testimony. But Mayers waived the psychothera- pist-patient privilege by producing his mental health records, (see Dr. Siegert’s Report at 5-8 (detailing the psychiatric records that Dr. Siegert reviewed in preparing the report)), submitting to a psychological evaluation with Dr. Siegert (id. at 15-29 (providing conclusions of evaluation)), and providing deposition testimony regarding his mental health history. Gd. at 13-14.) See Bank of America, N.A. v. Terra Nova Ins. Co., 212 F.R.D. 166, 170 (S.D.N.Y. 2002) (holding that producing materials to adversary is sufficient to waive work product privilege); Speedfit LLC v. Woodway USA Inc., No. 17-CV-768, 2019 WL, 1441148, at *6-7 (E.D.N.Y. Mar. 28, 2019) (finding waiver of attorney-client priv- ilege where purportedly protected information was voluntarily disclosed to and entered into evidence without objection by liti- gation adversaries). Now that the evidence has been produced without any assertion of the psychotherapist-patient privilege, Plaintiffs cannot seek belated protection from the more lenient standard of Rule 402. 2. Usefulness of Dr. Siegert’s Expert Testimony to the Jury Federal Rule of Evidence 702 allows for expert testimony where the expert’s “specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702{a). Expert testimony fails to meet this standard when it “usurps either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it.” Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005); see also United States v. Duncan, 42 F.3d
dysfunction or equivalent injury.” Greenberg, 2006 WL 1116521, at *6 (col- Jecting cases).
97, 101 (2d Cir. 1994) (“When an expert undertakes to tell the jury what result to reach, this does not aid the jury in making a decision, but rather attermpts to substitute the expert’s judgment □ for the jury’s.”) (emphasis in original). “It is a well-recognized principle of our trial system that determining the weight and credibility of a witness’s testimony belongs to the jury[.]” Nimely, 414 F.3d at 397. Asa result, expert testimony regarding the cred- ibility of other witnesses is inadmissible under Rule 702, regardless of whether that testimony is “rooted in scientific or technical expertise.” Id. at 398.
. While Dr. Siegert’s Report opines on the impact of Mayers’s past mental health diagnoses on his emotional state, as discussed su- pra, much of the report is instead devoted to the opinion that Mayers’s “deficits... make it impossible to have confidence in the accuracy of how he interprets events in his life, including at the workplace.” (Dr. Siegert’s Report at 29-30.) Throughout the □ report, Dr. Siegert opines that based on his examination, Mayers falls into a category of individuals “likely to be suspicious, hostile, and overly sensitive” and “externalize blame for their problems, frustrations and failures [or] have persecutory ideas[.]” Gd. at 19.) These conditions make Mayers “unreliable,” likely to “be- lieve that others talk about them and have it in for them,” or . “paranoid.” Ud. at 19-20.) Regardless of the scientific rigor of Dr. Siegert’s examination, these observations directly attack Mayers’s credibility as a wit- ness to his own (and Belvin’s) discrimination. If Mayers is (in the opinion of a psychologist) paranoid and inclined to believe peo- ple “have it in for [him],” the theory goes, he must have misunderstood or invented his interactions with EML and falsely attributed discriminatory intent; the jury therefore should not be- lieve him. (id. at 30.) Dr. Siegert’s Report’s conclusion plainly states that goal: to call into question “the accuracy of how [May- ers] interprets events... at the workplace.” (d.) But it is the
jury’s province to determine whether Mayers’s version of events is credible, not that of an expert witness. See United States v. Hamlett, No. 19-3069, 2021 WL 5105861, at *2 (2d Cir. Nov. 3, 2021) (summary order) (affirming district court’s decision to ex- clude expert testimony regarding witnesses’ mental health in part because it “would likely constitute an evaluation of witness cred- ibility”). EML argues that Dr. Siegert’s observations “are limited to... di- agnosing any relevant mental health conditions and medically evaluating the severity and extent of [Mayers’s] purported emo- tional distress.” (Opp. to Plaintiffs’ MIL (Dkt. 75) at 10.) As discussed above, such expert testimony is relevant and admissi- ble. For instance, Dr. Siegert’s opinion that Mayers “has. significant distress caused by a combination of a pre-existing mental iliness coupled with the added distress of having a threat- ening physical illness’ does not usurp the jury’s role in determining credibility. (Dr. Siegert’s Report at 30.) Accordingly, Dr. Siegert will be permitted to testify regarding the impact of independent factors on Mayers’s mental health, such as mental health diagnoses that predated the conduct at issue in this case, or potential alternate causes of Mayers’s stress that would miti- gate the damages caused by EML. But Dr. Siegert is precluded from testifying regarding his diagnosis of Mayers’s paranoia or unreliability, and from raising any similar questions regarding Mayers’s ability to accurately perceive the motivations and ac- tions of those around him. EML is instructed to ensure that any expert testimony does not call into question Mayers’s credibility as a witness, as any such testimony is inadmissible under Rule 702. 3. Relevance and Prejudice of Dr. Siegert’s Summary of Mayers’s Personal History “Tn addition to the requirements of Rule 702, expert testimony is subject to Rule 403,” Nimely, 414 F.3d at 397, pursuant to which
“lt]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of... unfair prejudice, [or] confusing the issues[.]” Fed. R. Evid. 403. Because of the significant value juries may place on expert testimony, the Su- preme Court has cautioned that Rule 403 “exercises more control over experts than over lay witnesses.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993). Dr. Siegert’s Report included descriptions of Mayers’s marital sta- tus and current relationship, as well as that of his parents (Dr. Siegert’s Report at 15-16); that Mayers had a drinking problem and used drugs when he was younger, but has been sober from both alcohol and drugs for 22 years (id. at 16); and that Mayers was arrested once on a drug charge approximately 30 years ago, but his record was later cleared (id. at 16-17). EML argues that Dr. Siegert included this information, and presumably would tes- tify to it, as “general background information;” in addition, Mayers’s decades-old history of alcohol usage is specifically rele- vant because “excessive alcohol use is common in people” with Mayers’s psychological test results. (Opp. to Plaintiffs’ MIL at 11- 12.) It is unclear to the court that Mayers’s family background, history of alcohol or drug use, or criminal background have any rele- vance to this case, even under Rule 402’s lenient standard. None of these facts are helpful in assessing Mayers’s claims or any pos- . sible defenses. Nor does EML claim that any of these points (other than Mayers’s possibly “excessive” alcohol use 22 years ago) were relevant to Dr. Siegert’s analysis and diagnoses. The court sees no probative use at trial for any of these points, includ- ing any long-past struggles Mayers had with alcohol. See United States v. Krug, No. 15-CR-157 (RJA), 2019 WL 3162091, at *6 (W.D.N.Y. July 16, 2019) (hoiding evidence of a witness’s prior use of alcohol or drugs other than during the events discussed in testimony was inadmissible as irrelevant).
Even if the court were able to find a relevant purpose for these points, there would remain significant concerns about their prej- udicial effect. See Passino v. Tucker, No. 17-CV-1028 (DJS), 2021 WL 2766979, at *5 (N.D.N.Y. July 1, 2021) (holding that evi- dence of past instances of intoxication, even if relevant, were unfairly prejudicial under Rule 403). The primary effect of such references to Mayers’s (distant) past will be.to embarrass and shame him before the jury. Accordingly, EML may not introduce any evidence of, and Dr. Siegert is precluded from testifying re- garding, Mayers’s family background, marital status, past alcohol or drug use, and arrest or other criminal record, or any other similar evidence. For the reasons discussed above, Plantiffs’ MIL is GRANTED IN PART and DENIED IN PART. B. EML’s Motions in Limine □
1. Evidence of Bill Gambrell’s Statements EML states that testimony and evidence regarding racist state- ments made by Bill Gambrell, Plaintiffs’ former supervisor, should be excluded. (See generally Defendant’s First MIL.) EML states that it was formed as a legal entity in 2007; prior to that date, the Electchester co-op was run by five different housing companies with no central organization and who managed their own staffing. Ud. at 1.) Gambrell worked as a General Manager under that earlier structure, but was never employed by EML. (Id. at 1-2.) But the conduct and statements which Plaintiffs wish to introduce into evidence occurred in 1999, 2000, and 2002. (id. at 2.) As a result, EML argues that Gambrells statements can- not be imputed to EML and are therefore irrelevant under Federal Rule of Evidence 402; even if relevant, they are unduly prejudicial under Federal Rule of Evidence 403. (Id. at 3.)
In response, Plaintiffs argue that EML is successor-in-interest to Gambrell’s employer, and therefore inherited any liabilities re- sulting from Gambrell’s conduct. (Plaintiffs’ MIL at 4-5.) At the outset, the court notes that this terminology is misplaced: state- ments from 2002, on their own, cannot support liability against EML (regardiess of whether EML inherited its predecessor's lia- bilities) because they are untimely. See Natl R.R. Passenger Corp. v, Morgan, 536 U.S. 101, 109 (2002). EML’s argument that the evidence must be excluded because the acts would not support a timely claim for liability is similarly misplaced, though, as the statute does not “bar an employee from using the prior acts as background evidence in support of a timely claim.” Jd. at 113.° For a variety of reasons, it is unclear whether testimony regard- ing Gambrell’s statements is relevant evidence. Whether Gambrell’s conduct can be imputed to EML could turn on several tangential legal questions, requiring analysis of topics including EML’s formation and the extent to which it retained management from its predecessor, GambrelPs role within the predecessor en- . tities, and the nature of his employment relationship with the Plaintiffs. It may also potentially implicate whether and when Plaintiffs reported Gambrell’s behavior to management. Even if relevant, it is unclear whether Plaintiffs’ testimony on this topic would even be admissible as a party-opponent statement. See Fed. R. Evid. 801(d) (2). . In any event, the court holds that testimony regarding Gambrell would confuse the issues and the jury in a manner that substan- tially outweighs the limited probative value of 20-year-old 3 Morgan also stated that “[hJostile environment claims are different in kind from discrete acts” because they “involve[] repeated conduct” and therefore, the continuous violation doctrine can bring otherwise untimely acts within the statute of limitation. Morgan, 536 U.S. at 115. As Gambrell’s statements are being offered as background evidence and not as the basis for an independent claim, the court declines to address whether the con- tinuing violation doctrine would apply here.
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statements from an employee who has long since left the com- pany. See Fed. R. Evid. 403. The statements in question are _ remote in time and would only be useable as background evi- dence of the work environment, not as direct evidence. It would be a poor use of judicial resources and the parties’ time to con- duct a mini-trial focused on determining whether EML is responsible for Gambrell’s statements. And introducing state- ments made 20 years ago may confuse the jury, who is asked to determine whether Plaintiffs were subjected to a hostile work en- vironment far more recently. Accordingly, Plaintiffs are precluded from submitting evidence regarding Gambrell’s statements and conduct, and Defendant's First MIL is GRANTED. 2. Testimony Regarding Non-Party Complaints of Discrimination by EML EML next asks the court to preclude testimony from two non- party EML employees, David Hewlett and Jerome Jenkins, re- garding their own experiences of discrimination while working at EML, as well as Hewlett’s subsequent EEOC complaint. (See Defendant’s Second MIL.) Specifically, EML points to Plaintiffs’ stated intention to have Hewlett “testify regarding Defendant[’]s discriminatory practices against black employees... including filing his own EEOC complaint against Defendant and being pres- sured to withdraw the EEOC case by Vito Mundo.” (Ud. at 5-6 (citing the Joint Pre-Trial Order (Dkt. 57).) Jenkins would testify “how the Plaintiffs and himself were subjected to discriminatory practices” when he worked for EML. Ud.) EML complains that incidents of discrimination against non-parties are irrelevant be- cause Plaintiffs do not bring a pattern or practice claim and, even if they offer some probative value, are unfairly prejudicial and may confuse the issues under Federal Rule of Evidence 403. (See Defendant’s Second MIL.}
EML appears to ask the court to exclude Hewlett and Jenkins’s testimony in its entirety. But Plaintiffs indicate both Hewlett and Jenkins would also testify as witnesses to incidents of harassment experienced by the Plaintiffs themseives. (See Pls. Opp. to Def.’s Mot. in Limine at 3.) First-hand testimony of events involving Plaintiffs is plainly relevant, and the court will not preclude this evidence. With respect to Hewlett and Jenkins’s own experience of race- based harassment in the workplace, many of the cases on which EML relies excluded testimony that was not based on personal knowledge, such as hearsay, rather than on relevance grounds. See, e.g., Sarno v, Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999). On the current record, it appears both Hewlett and Jenkins will testify to their personal experiences at EMI, and events to which they were direct witnesses, so no hear- say issues are presently before the court. “Harassment experienced by other employees is relevant to hostile work environment claims,” provided the evidence of such harassment is otherwise admissible, like first-hand testimony. De- Marco v. West Hills Montessori, 350 F. App’x 592, 594 (2d Cir. 2009) (summary order) (citing Howley v. Town of Stratford, 217 F.3d 141, 155 (2d Cir. 2000) and Perry v. Ethan Allen, Inc., 115 F.3d 143,.150-51 (2d Cir. 1997)). “Since one of the critical in- _ quiries with respect to a hostile environment claim is the nature of the environment itself, evidence of the general work atmos- phere is relevant. Thus, ... in a hostile workplace case, the trier of fact must examine the totality of the circumstances, including evidence of... harassment directed at employees other than the plaintiff.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 150-51 (2d Cir. 1997), Therefore, testimony from other members of Plaintiffs’ protected class of their own experiences of harassment or discrimination is directly relevant to Plaintiffs’ claims of hostile work environment.
Indeed, such evidence may be central to proving Plaintiffs’ case. And there is no risk of confusing the issues, as evidence of Hewlett and Jenkins’s own experiences of discrimination at EML is probative of whether the work environment was hostile to its employees on the basis of their race—the exact issue being pre- sented to the jury. Next, Hewlett’s alleged experience of retaliation—that Vito Mundo, EML’s general counsel, pressured him to withdraw his EEOC complaint—is identical to that raised by Belvin. There is no per se rule that evidence of discrete acts of discrimination or retaliation towards non-parties is irrelevant or unduly prejudi- cial; instead, the court must determine admissibility “in the context of the facts and arguments in a particular case,” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387 (2008). When such evidence is sufficiently similar to the claims raised in the case—for example, when the conduct was engaged in by the same actor, or the actions occurred close in time or space to the plaintiffs experience—it is relevant. See Schneider v. Regency Heights of Windham, LLC, No. 14-CV-217 (VAB), 2016 □ WL 7256675, at *12 (D. Conn. Dec. 15, 2016) (weighing factors under which prior experiences of third parties are sufficiently similar). As a result, “it is well established in the Second Circuit that one way to establish retaliation is to demonstrate that other people who have participated in protected activity have been treated adversely and similarly to plaintiffs.” Gaffney v. Dep’t of Info. Tech. & Telecomms., 579 F. Supp. 2d 455, 460 (S.D.NLY. 2008) (citing Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 141 . (2d Cir. 1993), Taitt v. Chem. Bank, 849 F.2d 775, 778 (2d Cir. 1988)). Accordingly, Hewlett’s testimony regarding EML’s retali- ation for filing an EEOC complaint is admissible. . Finally, EML also argues that Hewlett and Jenkins were not de- posed and their claims of discrimination were not subject to
discovery. (See Defendant’s Second MIL at 6.) Even a cursory re- view of the record shows that this was an issue of EML’s own making. At their depositions, both Mayers and Belvin discussed Hewlett and Jenkins as witnesses to Plaintiffs’ discrimination, and detailed how Hewlett and Jenkins faced similar hostility and retaliation at EML. (See Pls. Opp. to Def.’s Mot. in Limine at 3.) Had EML wished to depose these witnesses, it should have sought to do so while discovery remained open. Accordingly, Defendant’s Second MIL is DENIED. 3. Golden Rule and Reptile Theory Arguments EML argues that the Plaintiffs should be precluded from making arguments based on either the “golden rule” or the “reptile the- ory.” (See generally Defendant's Third MIL.) The golden rule “tactic,” as EML describes it, occurs when counsel tells the jury “either directly or by implication, that they should put themselves in plaintiffs place and render such a verdict as they would wish to receive were they in plaintiffs position.” Ud. at 5 (quoting Mar- coux v. Farm Serv, & Supplies, Inc., 290 F. Supp. 2d 457, 463 (S.D.N.Y. 2003).) The reptile theory, which apparently derives its name from a 2009 book on plaintiffs’ trial strategy in tort cases, consists of arguing that “the appropriate measure of dam- ages is not the amount of harm actually caused in the case, but rather the maximum or cumulative harm that the defendant’s al- leged conduct could have caused.” Ud. at 6.) Although arguments may not be designed to inflame or impas- sion a jury, Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005), “fa] district court is entitled to give attorneys wide latitude in formulating their arguments.” Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 271 (2d Cir. 1999). EML’s broad objections to possible trial strategies that may be employed in summation are not appropriately before the court on the present motions in limine. As several courts have observed when pre- sented with similar “reptile theory” arguments, “[t]he [clourt is
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being asked to rule on abstract and generalized hypotheticals” rather than specific “language, phrases or evidence the [c]ourt should deem improper.” Baxter v. Anderson, 277 F. Supp. 3d 860, □ 863 (M.D. La. 2017); see also Manion v. Ameri-Can Freight Sys. Inc., No. 17-CV-3262, (PHX) (DWL), 2019 WL 3718951, at *6-7 (D. Ariz. Aug. 7, 2019); Gannon v. Menard, Inc., 2019 WL 7584294, at *5 (S.D. Ind. Aug. 26, 2019). Therefore, the court declines to conclude categorically that “solden rule” and “reptile theory” arguments are improper. The cases to which EMI cites to claim that the “golden rule” argument is barred make clear that only golden rule arguments regarding damages are improper, but such an argument is entirely permis- sible with respect to liability. See, e.g., Marcoux v. Farm Serv. & Supplies, Inc., 290 F. Supp. 2d 457, 463 (S.D.N-Y. 2003) (“The well established ‘Golden Rule, also known as the ‘bag of gold’ rule, prohibits counsel from telling the jurors, either directly or by implication, that they should put themselves in plaintiffs place and render such a verdict as they would which to receive were they in plaintifPs position. Its application is limited to damages only.”) (emphasis added); Okraynets v. Metro. Transp. Auth,, 555 F. Supp. 2d 420, 432 (S.D.N.Y. 2008) (holding comments invit- ing jury to “understand [] the gravity of plaintiffs injuries,” rather than award the damages “they themselves would want to re- ceive,” did not violate the golden rule); see also Johnson v. Celotex Corp., 899 F.2d 1281, 1287 (2d Cir. 1990) (“The court found that all but two of the counsel’s alleged appeals to the Golden Rule argument related to liability only and not damages and were . therefore not improper.”) (emphasis added); Spray-Rite Serv. Corp. v. Monsanto Go., 684 F.2d 1226, 1246 (7th Cir. 1982) (“Spray-Rite’s counsel should have refrained from asking the jury to put itself in Spray-Rite’s position when it decided how much to award Spray-Rite.”) (emphasis added). Plaintiffs express no in- tention to use a golden rule argument regarding damages, and EML’s stated fear—that the jury will “decide the case based on
fears that they or members of their community could be injured as Plaintiffs were allegedly injured”—goes to liability, not dam- ages. (Defendants Third MIL at 7 (emphasis added)}.) Accordingly, such an argument will be permitted, and FML may renew its objection at trial only if Plaintiffs make a golden rule argument on damages. Similarly, it is impossible to conclude (without specific language and context) whether reptile theory arguments will be inflamma- tory. Indeed, the only decision in this district to mention the “reptile theory” called such a hypothetical argument “incompre- hensible.” Fields v. Bayerische Motoren Werke Aktiengesellschaft, — F. Supp. 3d -, 2022 WL 905129, at *2 & n.2 (E.D.N.Y. Mar. 28, 2022). While some versions of this argument may improperly in- flame the jury, others—like those suggested by Plaintiffs in opposition—would be entirely permissible. (See Pl. Opp. to De- fendant’s Mots. in Limine (Dkt. 70-2) at 5-6 (suggesting that New York anti-discrimination laws intended to protect the public at large, including the jury, from the type of conduct at issue here and that punitive damages have deterrent effect).) Accordingly, Defendant’s Third MIL is DENIED, EML may, con- sistent with the Federal Rules of Evidence and the above ruling, . object to specific statements during trial. 4, Evidence of Liability Insurance and Settlement Discussions EML argues that Plaintiffs should be preciuded from introducing (1) evidence that EML is insured against liability or (2) evidence of settlement discussions. (See generally Defendant's Fourth MIL.) Federal Rule of Evidence 408 states that evidence of settle- ment offers, and conduct or statements made during settlement negotiations, is inadmissible “either to prove or disprove the va- _ lidity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction[.]” Federal Rule of Ev- idence 411 states that “[e}vidence that a person was or was not
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insured against liability is not admissible to prove whether the "person acted negligently or otherwise wrongfully.” In response, Plaintiffs represent that they will not introduce evi- dence of insurance or settlement discussions for any purposes. (See Pl, Opp. to Def.’s Mot. in Limine at 6.) Accordingly, Defendant’s Fourth MIL is DENIED as moot. See Mcleod v. Llano, 17-CV-6062 (ARR) (RLM), 2021 WL 1669732, at *9 (E.D.N.Y. Apr. 28, 2021); Laureano v. City of New York, No. 17-CV-181 (LAP), 2021 WL 3272002, at *8 (S.D.N.Y. July 30, 2021). EML may renew its objection if Plaintiffs seek to introduce such evidence. IV. CONCLUSION For the reasons stated above, Plaintiffs’ MIL is GRANTED IN PART and DENIED IN PART; Defendant’s First MIL is GRANTED; Defendant’s Second MIL is DENIED; Defendant’s Third MIL is DE- NIED; and Defendant’s Fourth MIL is DENIED as moot. SO ORDERED.
Dated: Brooklyn, New York October |# , 2022 s/Nicholas G. Garaufis ICHOLAS G. GARAUFIS(| | United States District Jud