Rossy v. City of Buffalo et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARGARITA ROSSY, as Administrator of the
Estate of Jose Hernandez-Rossy,
Plaintiff,
V.
CITY OF BUFFALO, et al.,
Defendants.
DECISION & ORDER
17-CV-937-MA V-HKS
The "widely disparate versions of the facts" in this matter are set forth in detail
in the Decision and Order on the City Defendants' motion for summary judgment issued
by United States District Judge Hon. William M. Skretny on September 5, 2023 (ECF
No. 142), familiarity with which is assumed for purposes of the instant Decision and
Order.
Presently before the Court is Plaintiffs motion in limine seeking the admission
without foundational testimony of a report (the "GSR Report") by "one of the few
national experts accredited in [the] analysis of Primer Gun Shot Residue," Wayne D.
Niemeyer, which was commissioned by the New York State Office of the Attorney
General ("OAG") to test for traces of gun shot residue on the decedent's jacket and one
of his vehicle's airbags. ECF No. 188. The City Defendants oppose the motion. ECF No.
192. For the reasons discussed below, Plaintiffs motion is denied without prejudice.
LEGAL STANDARD
As the Supreme Court has noted, "[a]lthough the Federal Rules of Evidence do
not explicitly authorize in limine rulings, the practice has developed pursuant to the
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district court's inherent authority to manage the course of trials." Luce v. United States,
469 U.S. 38, 41 n.4 (1984). Indeed, "[t]he 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). Nevertheless, "courts considering a motion in limine may reserve judgment until
trial, so that the motion is placed in the appropriate factual context." United States v.
Van Putten, No. 04 CR. 803 (PKL), 2005 WL 612723, at *3 (S.D.N.Y. Mar. 15, 2005).
Either way, "the ruling is subject to change when the case unfolds .... [E]ven 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, 469 U.S. at 41-42.
DISCUSSION
As indicated, the motion before the Court seeks "an in limine ruling that the GSR
Report is admissible at trial without the need for foundational testimony from
Niemeyer." ECF No. 188-2 at 7.1 Plaintiff argues that the GSR Report is relevant,
satisfies the business-record hearsay exception under Fed. R. Evid. 803(6), is more
probative than prejudicial, and is not otherwise inadmissible. Id. at 7-10. In response,
the City Defendants maintain in pertinent part that the GSR Report is hearsay and of
limited relevance, and that Plaintiff has not satisfied Fed. R. Evid. 702 (governing
"expert testimony"). ECF No. 191 at 1-7. Therefore, they ask the Court to deny
Plaintiffs motion and require Plaintiff to establish the admissibility of any gun shot
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The page numbers cited in this Decision and Order refer to the page numbers generated by the Court's CM/ECF System,
located in the top right-hand comer of the documents referenced.
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residue evidence through proper expert testimony and a complete foundation. Id. at 7-
8.
Plaintiff does not dispute that the GSR Report is hearsay. Rather, Plaintiff argues
that the GSR Report should be admitted under the hearsay exception in Fed. R. Evid.
803(6). Where a party seeks the admission of an out of court statement for the truth of
the matter, it is that party's burden to show the applicability of an exception or
exemption to the prohibition on hearsay. Reynolds v. Am. Airlines, Inc., No. 14 CV 2429
(CLP), 2017 WL 6017355, at *2 (E.D.N .Y. Dec. 4, 2017) (citing, inter alia, Evans v. Port
Authority of N. Y. & N.J., 192 F. Supp. 2d 247, 263 n.121 (S.D.N.Y. 2002)).
Fed. R. Evid. 803(6), typically referred to as the "business record" exception,
permits the admission of writings which may otherwise be excluded as hearsay provided
that "(A) the record was made at or near the time by-or from information transmitted
by -someone with knowledge; (B) the record was kept in the course of a regularly
conducted activity of a business, organization, occupation, or calling, whether or not for
profit; (C) making the record was a regular practice of that activity; (D) all these
conditions are shown by the testimony of the custodian or another qualified witness ..
. ; and (E) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness." Id. Anticipating the
City Defendants' arguments under Fed. R. Evid. 702, Plaintiff points to a decision by
another court in this district in Horn v. Med. Marijuana, Inc., No. 15-CV-701-JWF, 2021
WL 1700257 (W.D.N.Y. Apr. 29, 2021), which concluded "that an opinion properly
admitted under Rule 803(6) does not necessarily need to satisfy the strictures of Rule
702." Horn, 2021 WL 1700257 at *3.
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The Court recogmzes, with the Horn court, the Fed. R. Evid. Advisory
Committee's statement that "the purpose of [Rule 803(6)] is to dispense with the
burdensome production of witnesses to support the admission of records which, by their
nature, have an unusually high level of reliability." Horn, 2021 WL 1700257 at *2 (citing
Fed. R. Evid. 803 Advisory Comm. Notes; Parker v. Reda, 327 F.3d 211, 214-15 (2d Cir.
2003)); see also ECF No. 188-2 at 7-9 (discussing Horn). The Court further
acknowledges the Horn court's conclusion with respect to the relationship between
Rules 702 and 803(6). Nevertheless, the Court here finds that the GSR Report in
question falls under one of the indicia of untrustworthiness cited in Horn. That is, the
Court is not presently persuaded that the GSR Report satisfies Fed. R. Evid. 803(6)(E),
as the report was created "in anticipation of litigation." Horn, 2021 WL 1700257 at *3
(quoting United States v. Kaiser, 609 F.3d 556, 57 4 (2d. Cir. 2010)).
As Plaintiff points out, the GSR Report is a product of a special investigation
commissioned by Governor Andrew Cuomo shortly after the decedent's death, and
conducted by the New York State Office of the Attorney General ("OAG"). ECF No. 188-
2 at 4 (citing ECF No. 107-4). As the report of that special investigation states, Governor
Cuomo appointed "the Attorney General as special prosecutor 'to investigate, and if
warranted, prosecute certain matters involving the death of an unarmed civilian ...
caused by a law enforcement officer."' ECF No. 107-4 at 3 (quoting Governor Cuomo's
order). Because the state was contemplating litigation when it commissioned the GSR
Report, and cognizant of the OAG's acknowledgement that there were "few national
experts accredited in the analysis of Primer Gun Shot Residue," the Court denies
Plaintiffs request to admit the GSR Report without foundational testimony. Horn, 2021
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WL 1700257 at *4 (finding it was "not the type of situation in which reliability can be
as readily assumed" where the individual procuring the test and providing the sample
was contemplating litigation).
This ruling does not preclude Plaintiff from moving at trial to admit limited
portions of the GSR Report that may not be hearsay, or for some other limited purpose.
See Labacz v. Rohr, No. 19-CV-528 (DLI)(RML), 2026 WL 880128, at *7 (E.D.N.Y. Mar.
31, 2026). As the Second Circuit has stated, the "degree of reliability necessary for
admission is greatly reduced where ... the declarant is testifying and is available for
cross-examination, thereby satisfying the central concern of the hearsay rule." Kaiser,
609 F.3d at 576.
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that Plaintiffs motion
in limine to admit the GSR Report is DENIED without prejudice.
Dated:
SO ORDERED.
August J!i_, 2026
Rochester, New York
~~
HON.MEREDITH A. VACCA
United States District Judge
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