Belvin v. Electchester Mgmt., LLC

635 F.Supp.3d 190

Michael BELVIN, and Michael Mayers, Plaintiffs, v. ELECTCHESTER MANAGEMENT, LLC, Defendant

17-CV-6303 (NGG) (MMH)

United States District Court, E.D. New York

Signed October 18, 2022

Albert Van-Lare, Law Offices of Albert Van-Lare, New York, NY, for Plaintiffs.

Corrine Shea, Marielle Alecia Moore, Matthew E. Stein, Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY, for Defendant.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiffs Michael Belvin and Michael Mayers bring this employment discrimination action against their employer, Defendant Electchester Management, LLC ("EML"). Trial is scheduled to begin in this case on November 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) ("Defendant'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 DENIED; and Defendant's Fourth MIL is DENIED as moot.

I. BACKGROUND

The court assumes the parties' familiarity with the factual background 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. (Id. at 8.) Both remained in their positions in 2007, when EML was formed to manage the housing complex. (Id. 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 §§ 296 et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code §§ 8-101 et seq. Mayers additionally brought claims pursuant to the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12111.

Following the Summary Judgment Opinion, the following claims remain at issue: (1) both Plaintiffs' claims for hostile work environment and racial discrimination claims premised on their disparate treatment due to being subjected to a hostile work environment, under Title VII, 42 U.S.C. § 1981, NYSHRL, and NYCHRL; (2) Belvin's claim for retaliation under Title VII, 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).¹ "A court will exclude evidence on a motion in limine only if it is clearly 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). "[C]ourts considering a motion in limine may reserve decision until trial, so that the motion is placed in the appropriate factual context." Ohio Cos. 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, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984).

III. 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 psychological expert, Dr. Mark Siegert, Ph.D., in whole or in part. Dr. Siegert produced an expert report in which he detailed Mayers'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 entirety 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 discussed further below, this objection to Dr. Siegert's testimony is without merit.

However, Plaintiffs' objections to specific portions and conclusions of Dr. Siegert's Report raise significant evidentiary issues. First, Plaintiffs argue that Dr. Siegert's Report provides impermissible conclusions regarding Mayers's state of mind and credibility under Federal Rule of Evidence 702. (Plaintiffs' MIL at 3-5.) Second, 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. (Id. at 6-9.) On both points, Plaintiffs assert that Dr. Siegert should be precluded from testifying regarding 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 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 (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 plaintiff's history of mental illness certainly is relevant to a determination of emotional 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 conduct. See Hartman v. Snelders, No. 04-CV-1784 (CLP), 2010 WL 11626508, at *21 (E.D.N.Y. Jan. 28, 2010) (holding that a plaintiff's 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, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). Like other testimonial privileges, though, the psychotherapist-patient privilege may be waived, and such waiver may be express or implied, including by bringing a claim that places the plaintiff's mental health at issue. Id. at 15 n.14, 116 S.Ct. 1923; 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 privilege 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 communications 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 cases "ha[d] not developed a consistent approach to whether and when waiver [of the privilege] is properly inferred," Hershey-Wilson 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 damages is insufficient to put the plaintiff's mental health "in controversy" or find implied waiver. Sims, 534 F.3d at 138, 140-41.²

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 psychotherapist-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. (Id. 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 privilege where...