Case 1:13-cv-08096-GBD-RLE Document 97 Filed 02/09/16 Page 1 of 15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------------- X
CHRISTIN AMBROCIA MYLES,
Plaintiff,
-againstBRANDON MARSHALL,

No. 13-cv-8096
(GBD)(RLE)

Defendant.
--------------------------------------------------------------------- X

PLAINTIFFS RESPONSES TO DEFENDANTS

INITIAL MOTIONS IN LIMINE

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Plaintiff submits the following oppositions and responses to defendants motions

in limine, dated January 4, 2016. Plaintiff also respectfully requests leave to amend this
Opposition for the reasons stated in our February 5, 2016 letter to the Court.
I.

DEFENDANTS BORDERLINE PERSONALITY DISORDER IS

ADMISSIBLE AS NON-HEARSAY OR, ALTERNATIVELY, UNDER THE
HEARSAY EXCEPTIONS
Evidence of Mr. Marshalls Borderline Personality Disorder (BPD) is relevant

on three grounds: (1) as a Party Admission, (2) on impeachment grounds, and (3) as a
statement of motive or state of mind. It is also clearly relevant, and its probative value
outweighs its prejudicial effect.
As Defendant concedes, he does not deny that he has been diagnosed with a
borderline personality disorder, and that information is public knowledge. (Defs Mot. at
6 n.2.) Mr. Marshall first announced his disorder at a press conference in 2011.
According to the Diagnostic and Statistical Manual of Mental Disorders, Borderline
Personality Disorder is: a pervasive pattern of instability of interpersonal relationships,
self-image, and affects, and marked impulsivity, beginning in early adulthood and present
in a variety of contexts and includes Inappropriate, intense anger or difficulty
controlling anger (e.g., frequent displays of temper, constant anger, recurrent physical
fights).1

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed.

2013).

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Mr. Marshall has made himself a spokesperson for the disorder.2 He has also
created Public Service Announcement regarding his diagnosis and his stay at McLead
Hospital,3 and has created or co-founded two non-profit foundations in support of
treatment for the disorder: Project Borderline4 and Project 375.5
Mr. Marshall has been an impressive champion for the cause. Since his diagnosis
in 2011, he frequently expressed that the disorder manifested itself as anger, which
caused him to act out.6 In 2016, Mr. Marshall continues to be open about his diagnosis as
well as his treatment at McLean Hospital in 2010, less than 6 years ago.7 He still actively
speaks about his diagnosis and the rage and anger that was associated with it.8

Following his diagnosis three years ago, Marshall, now 30 and a Pro Bowl wide receiver for the
Chicago Bears, set an ambitious goal: become for mental health what Magic Johnson is for HIV. Marin
Cogan, The pursuit of radical acceptance, ESPN, available at
http://espn.go.com/nfl/story/_/page/hotread140707/chicago-bears-brandon-marshall-spreads-awareness-nflmental-health-crisis-espn-magazine (last visited February 9, 2016).
3

Brandon Marshall: My Borderline Personality Disorder Diagnosis, Jan. 21. 2015, available at
https://www.youtube.com/watch?v=dccpIU3bPj8 (for me, my life was spiraling out of control.)
4

About Us, Brandon Marshalls Project Borderline, available at

http://projectborderline.org/Official_Site/Home.html. The website includes a section on Brandons
diagnosis, as well as his treatment at McLean Hospital:
Inspired by his own journey to come to terms with a diagnosis of Borderline Personality
Disorder, Miami Dolphins Wide Receiver Brandon Marshall vowed that he would devote
himself to making a difference in the lives of others struggling to cope with the disorder.
After spending several months in intensive treatment at McLean Hospital, Brandon went
public with his diagnosis and created a foundation to realize his goal of giving others the
same chance at recovery that he had. Id.
5
6

Who We Are, Project375, http://project375.org/who-we-are/ (last visited February 8, 2016).

See, infra.

Interview on the Late Show with Stephen Colbert, Jan. 20, 2016, at 1:14-1:33, available at
http://www.cbs.com/shows/the-late-show-with-stephen-colbert/video/02CB0C33-E65D-C7D6-1081619C2022EA2F/brandon-marshall-explains-project375/?utm_content=buffer5f6fb&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer
(last visited February 8, 2016).
8

Id.

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Mr. Marshalls openness, however, also provides a public display of his illness
which lessens the prejudicial effect. His openness includes public statements related to
his struggles with his anger as they relate to his diagnosis. Thus, Plaintiff does not intend
to introduce the evidence to establish that Defendant has a propensity for violence,
making the evidence extremely relevant. Further, the diagnosis and manifestation of the
diagnosis are admissible for three distinct reasons:
(1) Party Admission
Plaintiff intends to introduce evidence relating to prior statements made by
Brandon Marshall regarding the anger and rage that was associated with his diagnosis of
BPD. Federal Rule of Evidence 801(d)(2)(A) permits the proponent to introduce a
statement when the statement is offered against a party and is . . . the partys own
statement, in either an individual or a representative capacity. Fed. R. Evid.
801(d)(2)(A). Such a statement is not considered hearsay.
By Mr. Marshalls own admission, he has described himself as a ticking time
bomb. (Marshall Dep. at 25:24-26:5.) On March 9, 2012, just two days before the
incident with Ms. Myles, Mr. Marshall gave a speech at the NEA-BPD Conference in
White Plains, New York. Mr. Marshall talked openly about his many offenses which
led the NFL to send him to McLead Hospital in Boston, Massachusetts where he was
required to meet with a number of mental health professions. During his speech on March
9, 2012, Mr. Marshall clearly stated: thats one of the things they told me: well you
have anger issues, well duhh.9

Diagnosing and Treating Adolescents with BPD White Plains, NY March 9, 2012,, Nat. Educ.
Alliance for Borderline Personality Disorder, available at
http://www.borderlinepersonalitydisorder.com/events/adolescents-with-bpd/, at 22:5923:01

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During that same speech, Mr. Marshall stated that, even during his treatment, he
struggled with his anger. For me, that presented itself . . . the anger. . . it turned me into
a ticking time bomb.10 Im sitting there with the same face, angry. . . and Im like
count to 10. . . by the time I get to 10 . . . but Ill still be pissed. You know, so the
angers still there.11 Mr. Marshall does not dispute that he made such statements.12
Mr. Marshall has a long history of troubling conduct that speaks to his clear
struggles surrounding his anger. As early as 2006, reports reveal that Mr. Marshalls then
girlfriend, Rasheedah Watley, filed a police report alleging that Mr. Marshall physically
assaulted her. In 2007, the same girlfriend reported that Mr. Marshall had punched her
in the face on a number of occasions.13 In 2011, his wife was taken into custody after an
altercation with Mr. Marshall, a situation which Mr. Marshall referenced in his March 9,
2012 speech.14
Mr. Marshall has recently also stated that his BPD was the cause of his anger.15
Specifically, in January of 2016, Mr. Marshall stated, regarding his diagnosis: Its
almost like a football player where you expect that guy to be this beast this monster on

10

Id. at 13:4413:49.

11

Id. at 23:1423:48.

12

Marshall Dep. at 26:626:11.

13

Ed Quillen, Marshall focus of three incidents in Atlanta, Denver Post, June 29, 2008, available at
http://www.denverpost.com/quillen/ci_9731450 (last visited February 9, 2016).
14

Diagnosing and Treating Adolescents with BPD White Plains, NY March 9, 2012,, Nat. Educ.
Alliance for Borderline Personality Disorder, available at
http://www.borderlinepersonalitydisorder.com/events/adolescents-with-bpd/, at. 17:3417:56.
15

Interview on the Late Show with Stephen Colbert, Jan. 20, 2016, at 1:141:33, available at
http://www.cbs.com/shows/the-late-show-with-stephen-colbert/video/02CB0C33-E65D-C7D6-1081619C2022EA2F/brandon-marshall-explains-project375/?utm_content=buffer5f6fb&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

Case 1:13-cv-08096-GBD-RLE Document 97 Filed 02/09/16 Page 6 of 15

the field but have that switch to turn it off when he walks off . . . well I had a hard time of
doing that.16
Mr. Marshall has had a number of significant statements relating to his anger that
qualify under the Federal Rules of Evidence as party admissions.
(2) Impeachment
Mr. Marshalls psychiatric history would also be admissible as impeachment
evidence pursuant to Federal Rule of Civil Procedure 801(d)(1). Mr. Marshall has made
contradicting statements regarding the way BPD manifests itself within him. In his
deposition, Mr. Marshall repeatedly stated that his borderline personality disorder did not
present itself as anger.17
However, in direct contrast, on the date of the incident, Mr. Marshall stated that
he struggled with anger issues and that he realized that the BPD manifested itself as
anger.18
In Chnapkova v. Koh, the Second Circuit found a clinical history of mental
illness is probative of the credibility of the witness. 985 F.2d 79 (2d Cir. 1993). We
would use this evidence to show repeated inconsistencies in his declaration that his BPD
does not manifest itself as anger and that he is not an angry person.
(3) State of Mind

16

Id.

17

So the way [BPD] present (sic) itself in me, I would isolate myself, and I really shut down.
Marshall Dep. at 2425.
18

On the day of this incident, Mr. Marshall talked openly about how he was told that he had anger
issues, to which he stated well, duh. Diagnosing and Treating Adolescents with BPD White Plains, NY
March 9, 2012,, Nat. Educ. Alliance for Borderline Personality Disorder, available at
http://www.borderlinepersonalitydisorder.com/events/adolescents-with-bpd/, at 22:5923:01

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Beyond impeachment, Mr. Marshalls diagnosis, as well as his speech days before
the incident, is also relevant pursuant to Fed. R. Evid. 803(3) as it speaks to his state of
mind at the time of the incident. See S.E.C. v. Happ, 392 F.3d 12 (1st Cir. 2004). It is
also admissible pursuant to Fed. R. Evid. 803(3), as an exception to the hearsay rules as
[a] statement of the declarants then-existing state of mind (such as motive, intent, or
plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily
health). Thus, [i]f relevant, a declarants statement of his intent may be introduced to
prove that the declarant thereafter acted in accordance with the stated intent. United
States v. Best, 219 F.3d 192, 198 (2d Cir. 2000), cert. denied, 532 U.S. 1007, 121 S.Ct.
1733, 149 L.Ed.2d 658 (2001). As the Circuit has explained, [t]he Advisory Committee
Notes on the adoption of Rule 803(3), however, state that the Committee intends . . . to
render statements of intent by a declarant admissible only to prove his future conduct, not
the future conduct of another person. U.S. v. Persico, 645 F.3d 85, 100 (2d Cir. 2011)
(citing Fed.R.Evid. 803 Advisory Committee Note (1974)).
On March 9, 2012, two days before the incident, Mr. Marshall spoke openly about
his state of mind at that time: Im not cured . . . I continue to do maintenance work.19
This is relevant because he admits to a continuing struggle to control his BPD, which he
has repeatedly stated manifests itself as anger.
II.

DEFENDANTS PRIOR ARRESTS AND VIOLATIONS OF NFL CODES

OF CONDUCT ARE RELEVANT BECAUSE THEY REPRESENT A
PATTERN OF CONDUCT AND A LACK OF MISTAKE
(1) Proof of Pattern of Conduct

19

Brandon Marshall Speaks at NEA-BPD Conference in White Plains, NY, Nat. Educ. Alliance for
Borderline Personality Disorder, available at https://www.youtube.com/watch?v=GXrXGoMaEYA, at
21:46-22:00..

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Mr. Marshall has been arrested and reprimanded by the police and the NFL on
numerous occasions. Some of these reprimands involve domestic violence disputes. In
fact, he has openly stated that his treatment at McLead Hospital, where he was in an
outpatient program for three months and diagnosed with Borderline Personality Disorder,
was mandated by the NFL and related to his anger.20 These arrests and violations are
relevant because they represent a clear pattern of conduct.
Such a pattern can be seen as early as 2006, when Mr. Marshall and his thengirlfriend Rasheedah Watley both filed police reports alleging physical abuse. On January
24, 2007, Ms. Watley allegedly filed a police report indicating that Mr. Marshall had
punched her in the face. On March 26, 2007, Mr. Marshall was arrested on charges of
domestic violence and false imprisonment. In fact, Ms. Watley repeatedly reported to
police that Mr. Marshall had punched her in various places, including in the eye. On
March 6, 2008, Mr. Marshall was arrested on a misdemeanor battery charge. He was
acquitted of these charges on August 14, 2009. On April 22, 2011, Mr. Marshalls wife,
Michi Nogami-Marshall, was arrested after she admitted that she stabbed Mr. Marshall in
self-defense. The charges were dropped. Less than one year later, Mr. Marshall was
involved in the incident in question.21

20

In the NFL, theres a conduct policy so if you get in any trouble theyre going to throw you in
some crazy program. And if youre someone like me who has repeated offenses, theyre going to make you
talk to several people. . . . It was like overkill. . . I never understood why. Id. at 15:17-16:15. He goes on
to say, the NFL saved my life. The NFL made me look at myself. The NFL sent me to treatment. The NFL
was . . . sent me to McLean three years ago, four years ago. Id.
21

Information of this sort was gathered from news sources. See, e.g., A timeline of Marshalls offfield problems, ESPN, available at: http://espn.go.com/blog/chicago/bears/post/_/id/4675509/a-timeline-ofmarshall%E2%80%99s-off-field-problems (last visited February 9, 2016).
Plaintiff does not have access to important and necessary discovery regarding this information,
and seeks to reopen discovery for purposes of investigating this and other relevant information.

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This Court has found that evidence demonstrative of pattern is admissible under
Rule 404(b). Carofino v. Forester, 450 F.Supp.2d 257, 272 (S.D.N.Y. 2006); see also
Ismail v. Cohen, 899 F.2d 183, 18889 (2d Cir. 1990) (characterizing the establishment
of pattern as a legitimate ground for admitting prior-act evidence under Rule 404(b)).
Accordingly, courts have held that records of disciplinary charges, internal
investigations, and complaints concerning prior instances of misconduct which are
similar to the misconduct alleged by the plaintiff could lead to evidence that would be
admissible at trial and thus, are discoverable. Frails v. City of New York, 236 F.R.D.
116, 11718 (E.D.N.Y. 2006) (collecting cases) (emphasis supplied).
Finally, Mr. Marshalls acquittal from the 2008 domestic violence charge is
admissible. Evidence based on an acquittal may be admitted under Rule 404(b). See, e.g.,
Dowling v. United States, 493 U.S. 342, 34849 (1990).
The evidence of repeated and consistent spurts of anger and aggression against
women from as early as 2006 through 2012 are relevant to reveal a pattern of behavior.
The evidence would be used to show a repeated historical pattern in Mr. Marshalls life.
As a result, we request the opportunity to reopen discovery relating to Mr. Marshalls
repeated pattern of anger and the violations and arrests that have resulted from that anger.
(2) Lack of Mistake
Further, Fed. R. Evid. 404(b)(2) states that evidence of a crime may be admissible
to prove absence of mistake or lack of accident. Llerando-Phipps v. City of New York,
390 F.Supp.2d 372, 380 (S.D.N.Y. 2005) (Evidence of a history of such abuse is
relevant and highly probative to this case). The evidence would be used to negate any
mistake on Ms. Myless part regarding the identity of her assailant.

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III.

DEFENDANTS TREATMENT AND CARE WHILE PARTICIPATING IN

NFL MANDATED PROGRAMS ARE RELEVANT
On the day of the incident, Mr. Marshall stated that the NFL told him he had to

change his ways.22 And the NFL saved my life. . . it gave me the opportunity to save
my life. It showed me the direction I had to take to McLead Hospital.23 Furthermore, as
detailed above, Mr. Marshall discussed how he continues to struggle with his BPD
diagnosis, even after treatment.24 Mr. Marshalls party admission regarding his treatment
in NFL mandated program directly for his anger issues are relevant pursuant to the
Federal Rules of Evidence.25
IV.

MS. MYLESS MEDICAL RECORDS AND BILLS SHOULD NOT BE

EXCLUDED BECAUSE COUNSEL IS IN THE PROCESS OF
RECEIVING THE NECESSARY VERIFICATIONS AND WITNESSES
Plaintiff concedes that medical records are required to be certified in order to be

used as evidence. Plaintiff respectfully requests that the Court provide her with the
opportunity to remedy these procedural mistakes, given that, at the time, Ms. Myles was
litigating this matter pro se.

22

Brandon Marshall Speaks at NEA-BPD Conference in White Plains, NY, Nat. Educ. Alliance for
Borderline Personality Disorder, available at https://www.youtube.com/watch?v=GXrXGoMaEYA, at
26:13-26:15.
23

Id. at 26:50-27:00.

24

Id. at 18:26-18:34.

25

Plaintiff also requests that the Court grant us leave to reopen discovery for purposes of
investigating Mr. Marshalls participation in these programs, among other requests.

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Indeed, the Second Circuit has stated that [i]mplicit in the right to selfrepresentation is an obligation on the part of the court to make reasonable allowances to
protect pro se litigants from inadvertent forfeiture of important rights because of their
lack of legal training. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). The Circuit
explains, that such a right should not be impaired by harsh application of technical
rules. Id. (citing Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Beacon
Enterprises, Inc. v. Menzies, 715 F.2d 757, 768 (2d Cir. 1983) (allowing a a pro se
Plaintiff to remedy a minor procedural defect).
Records related to Ms. Myless injuries as a result of the incident are necessary
for purposes of this litigation. A minor procedural defect should not have a punitive
result, and Plaintiff intends on remedying this defect as soon as possible. Plaintiff is in
the process of obtaining all required certifications and will produce the certified records
to the Defendant shortly.

V.

EVIDENCE RELATED TO MS. MYLESS INJURIES IS RELEVANT

AND SHOULD NOT BE EXCLUDED
Defendant claims that Ms. Myless medical records should be excluded because

they are hearsay. (Defs Mot. at 10.) For the same reasoning as above, Plaintiff
respectfully requests the opportunity to remedy any procedural deficiencies so that she
might adequately represent the nature of her injuries. Plaintiff is also in discussions with
potential experts relating to these injuries, and respectfully requests additional time to
identify treating physicians pursuant to Federal Rule of Civil Procedure 26(a)(2)(C).

10

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VI.

EVIDENCE RELATED TO MS. MYLESS CLAIM FOR DAMAGES

ASSOCIATED WITH LEAVING NEW YORK IS RELEVANT AND
SHOULD NOT BE EXCLUDED
In approximately 2012, Ms. Myles moved to California where she was born and

raised. She did so to move home after the stress and notoriety she received from being
involved in this incident.26 Her family, including close friends and parents, reside in the
area. Thus, Ms. Myles will testify to the fact that she moved because of the emotional
damages stemming from this incident.
A determination of compensatory damages is a fact question for the jury to
decide. Ms. Myless testimony that it was the emotional strain from the situation that led
her to move to California will be sufficient. Such evidence is relevant and admissible, and
is not excludable under any rule.
Plaintiff seeks to introduce evidence that she lost money moving to California due
to the media attention resulting from the incident. Unlike the Defendants claim that
[t]he overwhelming majority of consequential damages cases involve contract or
contract-like disputes, New York Courts have repeatedly found consequential damages,
including loss of income and relocation, for tort actions. This is because the purpose of an
award of damages is to restore the aggrieved party to the position that he or she held prior
to the injury. See McDougald v. Garber, 73 N.Y.2d 246 (1989). This is accomplished by
awarding money that compensates the party for the actual loss sustained as well as those
items that will be sustained in the future. The figure arrived at need only be reasonable
and not merely speculative. Matter of Rothkos Estate, 43 N.Y.2d 305 (1977).

26

See, e.g., Kirstan Conley, NFL receiver Marshall slugs woman at Chelsea nightclub (Mar. 14,
2012), available at http://nypost.com/2012/03/14/nfl-receiver-marshall-slugs-woman-at-chelsea-nightclub/
(last visited February 9, 2016).

11

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Ms. Myles has brought tort claims for assault, battery, and intentional infliction of
emotional distress. Should the jury find in her favor, she is allowed compensation to
compensate for the harm she experienced. A tort is a civil wrong which can be redressed
by awarding damages. With respect to her claim for IIED, The law. . . does permit
recovery for emotional distress where that distress accompanies a physical injury.
Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424, 429-30 (1997). The very
definition of damages in tort cases are (a) to give compensation, indemnity or
restitution for harms; (b) to determine rights; (c) to punish wrongdoers and deter
wrongful conduct; and (d) to vindicate parties and deter retaliation or violent and
unlawful self-help.27
Defendant relies on Pitter v. Metro-N. Commuter R.R., 826 F. Supp. 2d 612, 616
(S.D.N.Y. 2011), a case which is clearly inapplicable. Pitter discussed economic
damages where a plaintiff lost his job after sustaining an injury, as analyzed under the
Federal Employers' Liability Act. A Plaintiff need only provide enough definite proof of
the amount to afford a sufficient basis for estimating the amount of lost profits being
claimed. See Muir v. Navy Fed. Credit Union, 744 F. Supp. 2d 145, 148 (D.C. Cir. 2010)
(citing Boggs v. Duncan, 202 Va. 877, 882, 121 S.E.2d 359, 363 (1961)).
VII. EVIDENCE RELATING TO COSTS AND EXPENSES RELATED TO
THE CASE
At the appropriate time, should the Plaintiff prevail, Plaintiff will seek appropriate
costs pursuant to Fed. R. Civ. P. 54 and/ or New York State law.

27

Restatement (Second) of Torts 901 (1979). Tort law allows recovery of nominal damages to
fulfill the second purpose of tort law, the determination of rights. Id. 901 cmt. b.

12

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VIII. EVIDENCE RELATING TO MS. MYLESS CLAIM FOR DAMAGES

ASSOCIATED WITH FUTURE MEDICAL TREATMENT IS RELEVANT
AND SHOULD NOT BE EXCLUDED
Defendant again misstates existing New York State case law and statutory law by
declaring that evidence relating to Ms. Myless claim for damages associated with future
medical treatment is not relevant. In any action brought to recover damages for personal
injury. . . where the plaintiff seeks to recover for the cost of medical care, . . . , evidence
shall be admissible for consideration by the court to establish that any such past or future
cost or expense. See N.Y. C.P.L.R. 4545(a).
Ms. Myles received an assessment regarding the cost of future corrective surgery.
Plaintiff is in the process of retrieving the necessary certifications for those records. Such
evidence is admissible and is for the fact finder to determine the costs that should
awarded for such expenses.
IX.

EVIDENCE OF THE VOICEMAIL MESSAGE IS RELEVANT AND

SHOULD NOT BE EXCLUDED
In his deposition, Mr. Marshall admits to knowing that the voicemail was Mr.

Raymond Edwards, and subsequently speaking to Mr. Edwards about the telephone
message he left on Ms. Myless voicemail.28 Thus, inclusion of the voice mail message is
relevant as a Party Admission and is not hearsay. Federal Rule of Evidence 801(d)(2)(A)
permits the proponent to introduce a statement when the statement is offered against a
party and is . . . the partys own statement, in either an individual or a representative
capacity. Fed. R. Evid. 801(d)(2)(A). Such a statement is not considered hearsay.

28

A. Yes. Well, I don't recognize the voice. I know Ray. Q. You don't recognize the voice --A. -the last time I talked to him was that conversation. Q. You talked to him about this conversation? A. Mmhmm. Yes. Marshall Dep. at 65:1421.

13

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We request the opportunity to do additional discovery on Mr. Edwardss

relationship to the Defendant, as well as the nature and purpose of the call to Ms. Myles.
X. Conclusion
For the reasons stated above, the Court should deny Defendants Motions in Limine.
Dated:

February 9, 2016
New York, New York

Respectfully submitted,
BELDOCK LEVINE & HOFFMAN LLP
By:

__/s/_________________________
Jonathan Moore
Luna Droubi
Joshua Moskovitz
99 Park Avenue, PH/26th Fl.
New York, New York 10016
Phone: (212) 490-0400
Fax: (212) 557-0565

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