The judge in the Cynthia N. Wiggins lawsuit Wednesday set the ground rules for the trial that is to begin in November.
State Supreme Court Justice Jerome C. Gorski offered preliminary rulings on a series of motions made by attorneys for both Ms. Wiggins' family and the defense, about what may or may not be admissible in the trial. Jury selection is scheduled to start Nov. 4.
Ms. Wiggins was fatally injured in December 1995, after getting off the Route 6 bus, when she was hit by a dump truck while trying to cross the intersection at Walden Avenue and Duke Road in Cheektowaga to reach her job at the Walden Galleria. Her death led to protests that the mall discriminated against blacks by banning that bus route from its property.
Lawyers for Pyramid Co. of Syracuse, owner of the mall, and the Niagara Frontier Transportation Authority on Wednesday sought to have references to alleged racial bias removed from the case.
"We all know that if (race is) let out of the bag, . . . somehow this will become our burden to disprove instead of it being their (the plaintiffs') burden to prove," defense attorney Albert J. D'Aquino said.
Gorski ruled that because evidence of racial motivations might have been part of the decision-making process by the mall owners, based on deposition testimony presented to the court, it will be heard before the jury.
Gorski also upheld an objection by the defense about plans to introduce a police officer as an expert witness who would answer questions about the hazard posed by the Walden Avenue intersection.
"The police officer's determination about the actions of the deceased will not be admitted. The officer did not witness (the fatal accident), and his testimony would be pure and total hearsay," Gorski said.
The judge also vowed to disallow either side from introducing too many expert witnesses who would all testify on the same issues.