UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

_______________________________ 

Charles S. Hottenstein, et al : Civil Action No. 

 : 1:11-cv-00740-JEI-JS 

: Hon. Joseph Irenas 

 : 

Plaintiffs : 

v. : 

: Jury Trial 

: 

City of Sea Isle City, et al : 

Defendants : 

: 

_______________________________: 

PLAINTIFFS’ OMNIBUS MOTIONS IN LIMINE 

 In an effort to organize and streamline the various limine motions that 

plaintiffs believe are relevant to decisions that may need to be made prior to or 

during trail, this omnibus motion is submitted: 

 Fed. R. Evid. 104(a) permits the Court in its discretion to make 

definitive pretrial evidentiary rulings in limine. A hearing may or may not be 

necessary, and it is in the Court’s discretion. Feit v. Great-West Life and Annuity 

Ins. Co., 460 F. Supp. 2d 632 (D.N.J. 2006). Plaintiff submits that the following 

motions will not require a hearing. Whether evidence is admissible depends first 

on the purpose for which it is offered. Fed. R. Evid. 105. Second, the evidence 

must be relevant and not excessively prejudicial for the purposes offered. Fed. R. 

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Evid. 401, 403. Third, if the evidence is introduced by the testimony of a 

sponsoring witness who is testifying as to scientific, technical or specialized 

matters, the admissibility of the evidence is dependent on whether the witness's 

testimony meets the requirements of Fed. R. of Evid. 702 and the Daubert/Kumho 

Tire standards. Finally, Fed. R. Evid. 102 emphasizes that interpretations of the 

rules of evidence should be made with an eye towards promptly, fairly, efficiently 

and inexpensively adjudicating cases. 

 If the Court should grant any of these motions, it is respectfully 

requested that it instruct the defense not to mention any particular motion in limine 

was filed and to warn and caution each defense witness to strictly follow the 

Court’s decisions on the limine motions. 

 A. Original Photographs Must Be Used 

 The original investigation photographs on disc received from the Cape May 

County Prosecutor’s Office or the Medical Examiner’s Office are the best evidence 

of the photographic recordation of the scene as it was photographed digitally and 

paper copies are specifically objected to unless they are certified. Fed. R. Evid. 

902(1) and (4), 1002, 1003. Plaintiff has obtained certified copies of photographs 

from the Office of Medical Examiner. 

 B. The Photograph Allegedly Depicting Tache Noir Must Be Barred 

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 One of the photographs taken at an unknown time at the scene depicts 

a close-up of Tracy’s face showing discoloration of the whites of Tracy’s eyes. 

There was no mention of this discoloration by the medics or the police. 

Defendants should be barred from referencing this photograph as a basis for any 

decision by any defendant to pronounce Tracy dead, because no defendant saw this 

discoloration before acting. A limiting instruction on the use of that photograph is 

warranted as it is irrelevant, confusing and more prejudicial than probative. Fed. 

R. Evid. 403. It is expected that defendants will use this photograph to try to 

disprove causation. However, defendants’ position that Tracy was dead when she 

was pronounced dead is based on the information of which they availed 

themselves—and it did not include looking at her eyes. 

 C. The Photographs Allegedly Depicting “Lividity” Must Be Subject 

 to a Limiting Instruction 

 Similarly, a number of photographs taken after the medics left depict a 

skin coloration condition that defendants have labeled “lividity”. The medic told 

Dr. Khebzou he could see “depended lividity” as part of his report to the doctor for 

a pronouncement. There are no photographs from the time period medics were on 

scene, 8:13 a.m. to 8:23 a.m. Medic witnesses should be instructed not to tell the 

jury any photograph depicts what they saw at the time they were at the scene 

because there are no photographs of what the medics saw at the particular time 

they were on scene. Alternatively, the Court should instruct the jury that any 

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photograph the medics reference was taken after they left the scene and does not 

accurately depict what they observed.

 D. Opinions About Tracy’s Condition by On-Scene Individuals Must 

 Be Barred 

 The admission of lay opinion testimony from scene personnel 

(including the Sea Isle City Ambulance Corps members, police officers or 

investigators) about Tracy’s condition, including whether she was dead or alive, or 

had “lividity” must be barred. Lay opinion must be strictly limited to that about 

which they have personal knowledge. Scene personnel should also be barred from 

drawing conclusions or labeling any physical manifestation (such as describing a 

skin condition as “lividity”), which requires testimony by an expert pathologist. 

The requirement of personal knowledge is a foundational requirement of Fed. R. 

Evid. 701. Only three police officers touched Tracy prior to the medic arriving. 

No medic got closer than 6 to 10 feet from her, and ambulance corps members 

were much further away. Only one officer spoke to Medic Senisch, who then 

called Dr. Khebzou. No other testimony is relevant and should not be allowed 

because of the danger of confusion of the jury and prejudice to the defendant. Fed. 

R. Evid. 403, 701. 

 However, none of the police officers who actually felt for a pulse are 

qualified to give opinions about her medical condition, it would be speculation and 

any conclusion drawn from their asserted inability to obtain a pulse would 

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necessarily be based upon specialized knowledge. (See Fed. R. Evid. 701 (c)). 

Police officers in New Jersey are not statutorily authorized to pronounce death. 

None of the on-scene personnel who failed to examine Tracy, and looked at her 

from far away, had sufficient facts or data to come to a lay opinion because 1) such 

testimony is not rationally based on the witness’s perception; 2) is not helpful in 

determining a fact in issue and 3) would necessarily be based upon specialized 

knowledge as required by Fed. R. Evid. 702. It would be more prejudicial than 

probative. Fed. R. Evid. 403. 

 Moreover, these witnesses cannot provide an opinion at trial when 

that opinion is based primarily on the statements or observations of others. Any 

other conclusion would allow, for example, a medic or police officer to subvert the 

prohibition against hearsay and pass along the essence of those hearsay statements 

to the jury even when the officer is not permitted to testify to the substance of 

others’ statements under the hearsay rule. That is exactly what happened here as 

reflected in the medic’s reports.

 Paramedics Senisch and Rocco never examined Tracy. There is the 

danger of confusion of the jury and prejudice to the plaintiff if non-experts, 

especially those who never examined Tracy, state their conclusions or opinions 

about, for example, death and “lividity”. Fed. R. Evid. 403, 701. If a witness 

cannot state the objective basis for his opinion, the opinion is not rationally based 

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on the witness’s perception. Here there is no objective evidence that Tracy was 

dead. U.S. v. Kaplan, 490 F.3d 110 (2d Cir. 2007); U.S. v. White, 492 F.3d 380 

(6th Cir. 2007)(Medicare auditors could testify as lay witnesses about their 

participation in audit, but could not explain procedure without being identified as 

experts); U.S. v. Cruz 363 F.3d 187 (2d Cir. 2004)(DEA Agent not identified as an 

expert could not testify as to meaning of terms used in drug culture). Similarly, 

none of the scene personnel have been identified as experts by the defendants and, 

in particular, the medical personnel who did not examine Tracy do not have 

personal objective evidence about Tracy’s condition. They can testify about their 

participation at the scene, but can go no further. 

 E. The Use of Certain Words Should Be Barred or Subject to 

 Restriction 

 The use of the word “intoxication” and related words, and the 

suggestion of drinking must be barred because neither defendant had any 

knowledge of same until the issuance of the medical examiner’s report and 

toxicology reports several days later. There can be no evidence of actual 

impairment. The topic of drinking or intoxication is not relevant to the claims 

against the defendants. This is particularly true because there can be no 

comparative fault lodged against plaintiff. The New Jersey Supreme Court 

precludes defendant Khebzou from asserting any comparative fault in this case 

because Tracy was incapable of exercising reasonable self-care at the time of the 

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injury. See Cowan v. Doering, 111 N.J. 451, 467 (1988); Tobia v. Cooper Medical 

Center, 136 N.J. 335, 338, 347 (1994)(no comparative fault when patient elderly, 

infirm, or incapacitated) 

 Any use or suggestion of intoxication could only be for the improper 

purpose of suggesting fault on the part of Tracy when neither contributory nor 

comparative negligence is an element in any claim in this case, or to prejudice the 

jury against her for drinking. See Straley v. U.S., 887 F. Supp. 728 (D.N.J. 

1995)(evidence of alcohol consumption is inadmissible absent evidence indicating 

actual impairment and excluding evidence because it was more prejudicial than 

probative) 

 The use of the word “body” in testimony to refer to Tracy at the 

marina must be monitored and restricted because whether Tracy was dead at the 

time defendants were at the marina is disputed. She should be referred to as a 

“female” or an “individual” in testimony as at the time her name was unknown. 

 The use of the description of any defense witness testifying about 

medical issues as “independent” or “independent medical examiner” or any related 

description and to bar any argument using the same terminology. 

 F. Defendants Are Barred By Summary Judgment From Blaming 

 Sea Isle City Police in an Empty Chair Defense 

 Summary judgment rulings are the “law of the case” which settle the 

question for all subsequent stages of the suit. In essence the Court has found Sea 

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Isle City police not at fault. Thus if Medic Senisch blames Sea Isle City police for 

his not accessing the patient, that is an issue decided. In fact, Sea Isle City police 

officer Harold Boyer at deposition denied barring the medics, noting in effect, they 

were more experienced than he was and if they had asked they could have 

approached Tracy. 

 G. Defense Expert Zafren is Not A Trained Pathologist and 

 Cannot Speculate About “Lividity” or Whether Death by 

 Hypothermia is Painful 

Ken Zafren, MD is an emergency physician with special expertise in 

hypothermia, he proffers no training in pathology. The portion of his opinion 

pondering “lividity” and that it means Tracy was deceased, has no scientific 

foundation, it is speculative and any such testimony must be barred from this 

witness. Such speculation by an unqualfied expert is not helpful to the jury and 

violates Fed. R. Civ. P. 702, Daubert and its progeny. 

Similarly, his rank speculation about what he has heard about death 

from hypothermia being, in essence, painless, must be barred. He does not address 

any physical manifestions of stress and is not a pathologist in any event. He does 

not claim to be an expert who can opine about the pain of death on any scientific 

or objective basis. This testimony must be barred. 

H. Pennsylvania Has a Greater Interest in the Survival Claim 

 and Damages Should Be Measured Under Pennsylvania Law 

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 Conflict exists between the Pennsylvania Survival Act and the New 

Jersey Survival Act with regard to the damages that an estate administrator is 

allowed to recover. Pursuant to 20 Pa. C.S. § 3371 and 42 Pa. C. S. § 8302, the 

administrator can recover for the Estate the decedent’s lost prospective net 

earnings, in addition to his or her pain and suffering, whereas N.J. Stat. Ann. § 

2A:15-3 allows recovery only for the decedent’s pain and suffering. Because such 

a conflict exists, determination of which statute applies in a survivor action 

involving Pennsylvania and New Jersey residents depends upon which state has the 

most significant relationship to the parties and to the accident underlying the suit 

and, significantly, whether application of the policies of the situs state will be 

frustrated by the application of the foreign law. Lebegern v. Forman, 471 F.3d 424 

(3d Cir. 2006)(car accident in New Jersey between New Jersey driver allegedly at 

fault and Pennsylvania driver, Pennsylvania citizen killed). 

 Because New Jersey and Pennsylvania survival laws differ on the 

scope of damages, there is a conflict between the laws of the two interested 

jurisdictions, this is only the first prong. It triggers the second prong of the 

governmental interest test, the determination of the policies underlying each state’s 

laws and whether those policies are implicated by applying the relevant state’s law 

to the particular issue. Lebegern ultimately decided in that case that New Jersey’s 

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survival statute was designed to protect those that naturally would benefit from it, 

that is, New Jersey defendants. 

 Lebegern held that while the legislative intent of the New Jersey 

survival law was sparse and vague, it could find that the law was meant to benefit 

those it benefitted, that is, New Jersey defendants exposed to the potential of 

another state’s law on damages. Lebegern found that New Jersey’s interest in the 

survival claim trumped Pennsylvania’s interest in protecting its decedent citizens 

and estates because New Jersey’s law focused on the protection of defendants in 

New Jersey from such damage claims. 

 On the facts of the case at bar however, defendants, a New Jersey 

licensed doctor and New Jersey licensed rescue personnel, failed to protect a 

Pennsylvania resident from their deficient affirmative acts as they violated New 

Jersey law they were directed to uphold by their professions. That New Jersey law 

meant to ensure that only dead individuals are pronounced dead. Defendants’ jobs 

task them with preserving life. Pennsylvania’s interest on the facts of this case in 

protecting its decedent citizens and estates from a New Jersey defendant failing a 

state mandated duty, trumps New Jersey’s interest in protecting these New Jersey 

defendants from Pennsylvania damage claims. All the cases found in research 

were about individual defendants committing various negligent acts who were not 

tasked by the State of New Jersey with the heavy burden of responsibility at issue 

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here. Most of the cases were auto accident cases, which are different in kind. The 

analysis in Lebegern did not focus on official acts by actors tasked by New Jersey 

to perform. 

 The Estate of Tracy Hottenstein thus has a greater interest in 

recovering fully under the laws of Pennsylvania than defendants have in limiting 

the Estate’s recovery under New Jersey law. This is particularly so because the 

pronouncement of death is of interest to both states and where a New Jersey 

defendant who is a licensed professional wrongly pronounced a Pennsylvania 

plaintiff dead, the interests of Pennsylvania in its decedent’s Estate is primary. The 

facts of this case are different in kind from the numerous tort cases analyzed 

subsequent to Lebegern. As set forth above, in Lebegern the appeals court opinion 

was based upon the greater interest New Jersey has in protecting defendants. On 

the facts of this case, it is highly unlikely that New Jersey has an interest in 

protecting a medical professional who fails to follow New Jersey’s pronouncement 

of death statutes and as a result pronounces a living person dead. 

Plaintiff preserves the issue that Pennsylvania damages law should be used 

to calculate damages for the Survival Action claims under a conflict of laws 

analysis. 

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I. Use of Experts 

Federal Rule of Civil Procedure 26(a)(2)(B) is very clear that an expert 

must supply a report for the opinions he will present. The report must contain: 

(i) a complete statement of all opinions the witness will express and the 

 basis and reasons for them; 

(ii) the facts or data considered by the witness in forming them; 

(iii) any exhibits that will be used to summarize or support them... 

In this case the defendants’ pretrial memo indicates they are calling as 

witnesses experts they did not hire. If a defendant has not proffered a report that 

complies with Rule 26, the expert testimony is barred. No report has been issued 

for any defendant by any expert if the expect was not hired by that party. Under 

the Rules, defendants are limited to only the experts each hired and the testimony 

is limited to only the reports produced by each expert. The jury must be cautioned 

as to which defendant an expert’s testimony applies. 

 Respectfully submitted, 

 

 Lynanne B. Wescott 

Dated: September 4, 2015

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 CERTIFICATE OF SERVICE 

 I, Lynanne B. Wescott, hereby certify that I served the foregoing by 

ECF Rules on the following counsel: 

Chris Wolk, Esquire 

Blumberg and Wolk, LLC 

PO Box 68 

Woodbury, NJ 08096 

Peter Sarkos, Esquire 

Fox Rothschild LLP 

Midtown Building, Suite 400 

1301 Atlantic Avenue 

Atlantic City, NJ 08401 

 

 _________s/_____________ 

 Lynanne B. Wescott 

Dated: September 4, 2015 

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