Berger v. New York City Police Department
- Vernon Broderick
- 1:13-cv-06084
- U.S. District Court · Southern District of New York
- 10
Judge Broderick granted two motions, granted in part and denied in part another, and reserved a fourth in Berger v. New York City Police Department.
The order primarily affected Sara Berger’s ability to present witnesses and evidence at trial and the defendants’ efforts to limit that evidence. It also set the timing for a final ruling on Dr. Kenneth Weinberg’s expert testimony.
What happened
In Berger v. New York City Police Department, the defendants asked the court to limit or exclude several witnesses’ testimony and evidence before trial. The motions concerned Andrew Krimsky, Dr. Kenneth Weinberg, Evan Feliciano, and events or damages after Sara Berger’s transfer from room 804(A) in 2015.
The court granted the motion requiring Krimsky to testify live. It granted in part and denied in part the motion concerning Feliciano’s testimony, allowing some observations and statements but excluding certain opinions and irrelevant evidence. It also granted the motion to exclude evidence of work-related events or alleged damages after Berger’s 2015 transfer.
Judge Vernon S. Broderick reserved a final ruling on Weinberg’s expert testimony until after a scheduled hearing about whether his opinions were reliable and admissible. The court also required Berger’s lawyer to describe certain expected testimony from Feliciano before he testified.
The detailed version
- Berger v. New York City Police Department · No. 1:13-cv-06084
- Vernon Broderick
- Dec. 19, 2019
Background
This order addressed four defense motions before trial. The defendants sought to require non-party Andrew Krimsky to testify live rather than by deposition, exclude or limit the testimony of plaintiff’s expert Dr. Kenneth Weinberg, exclude or limit non-party Evan Feliciano’s testimony, and exclude evidence of work-related events or alleged damages after Sara Berger’s transfer from room 804(A) in the summer of 2015.
Andrew Krimsky
Berger stated that she would not oppose Krimsky testifying live. The court therefore granted the defendants’ motion requiring her to call Krimsky as a live witness instead of offering his deposition testimony.
Dr. Kenneth Weinberg
The defendants challenged Weinberg’s expert report and testimony under Federal Rule of Evidence 702 and the standard from Daubert v. Merrell Dow Pharmaceuticals, Inc. At an earlier pretrial conference, the court preliminarily found that the report contained speculation and hearsay, was argumentative, and went beyond the scope of Weinberg’s expertise and analysis. The court concluded that the report itself should be excluded.
The court also preliminarily ruled that Weinberg could not testify that air samples taken a week after his walkthrough failed to show excessive dust because of an earlier cleanup and the passage of time, or that there was a connection between September 11 and Berger’s acid reflux. The court reserved its final ruling on the defense motions concerning Weinberg’s expert testimony until after a Daubert hearing scheduled for January 6, 2020.
Evan Feliciano
The court granted in part and denied in part the defendants’ motion concerning Feliciano. It ruled that Feliciano could testify about his observations of Berger’s ability to work before and after her move to room 804(A), but not about his subjective opinions of her work performance. The court found the observations relevant to whether Berger was qualified to perform her job and to her claimed damages.
The court reserved ruling until trial on whether particular statements about complaints concerning room 804(A) would qualify under the exception for statements describing or explaining an event or condition made while or immediately after the speaker perceived it. Berger’s lawyer was ordered to provide a proffer—an advance description—of the substance of those statements before Feliciano testified.
The court ruled that complaints concerning the dusty and dirty conditions for which Berger sought an accommodation could be relevant, including complaints and proposed solutions from other employees. But complaints limited to broader room conditions, such as whether the room was cold, were irrelevant unless they also concerned the dusty and dirty conditions; the court stated that any admissible portions could be accompanied by a limiting instruction to the jury. The court excluded Feliciano’s own opinions about whether proposed accommodations were reasonable and other employees’ opinions about the reasonableness or effectiveness of their suggestions.
The court also ruled that statements by defendant Wayne Scibelli and by Krimsky about Berger’s accommodation requests and the responses to those requests were admissible under the opposing-party statement rules. The court did not exclude Feliciano’s testimony on those matters on the grounds asserted by the defendants.
Events After the 2015 Transfer
Berger’s accommodation request concerned moving her workspace to the seventh floor. Because she was transferred from room 804(A) to the seventh floor in the summer of 2015, the court found that the request was, in substance, no longer active. The court therefore granted the motion to exclude evidence of work-related events or alleged damages occurring after that transfer, finding that evidence irrelevant to the claim at issue.
Disposition
The court granted the motion requiring Krimsky to testify live. It reserved ruling on the motion concerning Weinberg’s expert testimony until after the Daubert hearing. It granted in part and denied in part the motion to preclude Feliciano’s testimony, ordered an advance proffer regarding present-sense-impression testimony, and granted the motion to preclude evidence of later work-related events or alleged damages.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.