Bermudez v. Michael et al

Filing 140

ORDER granting in part and denying in part 99 105 119 120 the parties' respective motions in limine. For the reasons set forth in the attached, the parties' respective motions and outstanding objections to trial exhibits are gr anted in part and denied in part. Consistent with this order, the parties shall confer regarding their remaining evidentiary disputes and be prepared to offer proof as to exhibits and testimony not precluded by this order at the Final Pretrial Conference. Ordered by Judge Kiyo A. Matsumoto on 1/8/2019. (Mazzurco, Vincent)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
ROBINSON BERMUDEZ
Plaintiff,
-against-

MEMORANDUM AND ORDER
15-CV-3240 (KAM)(RLM)

CITY OF NEW YORK, LIEUTENANT
MICHAEL EDMONDS, SERGEANT JONATHAN
PEYER, POLICE OFFICER MATTHEW
HYNES, POLICE OFFICER CHRISTOPHER
DISTEFANO, AND POLICE OFFICER
NICHOLAS RUIZ,
Defendants.
----------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff Robinson Bermudez (“plaintiff” or
“Bermudez”) brings this action under 42 U.S.C. § 1983, alleging
defendant police officers used excessive force to arrest him on
March 1, 2015.
Compl.”).)

(See ECF No. 36, Amended Complaint (“Am.

Trial in this matter is scheduled to begin on

January 14, 2019.

The court assumes the parties’ familiarity

with the underlying facts of the instant case.

(See ECF No. 89,

Report and Recommendation at 2-5.)
Pending before the court are the parties’ respective
motions in limine to preclude certain evidence from being
admitted at trial.

(See ECF No. 101, Defendants’ Memorandum in

Support of Motion in Limine (“Def. Mem.”); ECF No. 102,
Plaintiff’s Opposition (“Pl. Opp.”); ECF No. 107, Plaintiff’s

Memorandum in Support of Motion in Limine (“Pl. Mem.”); ECF No.
109, Defendants’ Opposition (“Def. Opp.”); ECF No. 119,
Defendants’ Outstanding Objections to Trial Exhibits (“Def.
Obj.”); ECF No. 120, Plaintiff’s Outstanding Objections to Trial
Exhibits (“Pl. Obj.”).)

Defendants have already successfully

moved the court to preclude expert testimony from one of
plaintiff’s witnesses and to preclude the use of that witness’s
expert report.

(See ECF No. 137, Daubert Order; ECF No. 112,

Defendants’ Daubert Motion (“Daubert Mot.”).)

For the reasons

set forth below, the motions are granted in part and denied
part.

The court also rules on the parties’ respective

objections below but reserves decision as to some of the
objections pending an offer of proof by the proponent at the
scheduled Final Pretrial Conference in this matter.

Consistent

with this order, the parties shall confer regarding their
remaining evidentiary disputes and be prepared to offer proof as
to exhibits not precluded by this order at the Final Pretrial
Conference.
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
2

136, 141 (2d Cir. 1996).

“Evidence should be excluded on a

motion in limine only when the evidence is clearly inadmissible
on all potential grounds.”

United States v. Paredes, 176 F.

Supp. 2d 179, 181 (S.D.N.Y. 2001).

Further, a district court’s

ruling on a motion in limine is preliminary and “subject to
change when the case unfolds.”

Luce v. United States, 469 U.S.

38, 41 (1984).
The admissibility of evidence at trial is governed by
the Federal Rules of Evidence.

Federal Rule of Evidence 402

(“Rule 402”) provides that all relevant evidence is admissible
except as otherwise provided by the Constitution, Act of
Congress, or applicable rule.

Fed. R. Evid. 402.

Federal Rule

of Evidence 401 defines relevant evidence as that which “has any
tendency to make a fact more or less probable than it would be
without the evidence,” so long as “the fact is of consequence in
determining the action.”

Fed. R. Evid. 401.

The Second Circuit

has characterized the relevance threshold as “very low.”

See

United States v. White, 692 F.3d 235, 246 (2d Cir. 2012)
(quoting United States v. Al-Moayad, 545 F.3d 139, 176 (2d Cir.
2008)).

To be relevant, evidence need not prove a fact in issue

by itself, but only have “any tendency to make the existence of
any fact that is of consequence to the determination of the
action more probable or less probable than it would be without

3

the evidence.”

McKoy v. North Carolina, 494 U.S. 433, 440

(1990) (quoting New Jersey v. T.L.O., 469 U.S. 325, 345 (1985)).
Relevance in Excessive Force Cases
Relevant evidence in an excessive force case concerns
“whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.”

Bryant v.

City of New York, 404 F.3d 128, 136 (2d Cir. 2005) (internal
quotation mark omitted).

According to the Supreme Court, the

relevant factors for a jury to consider in determining whether
police force was excessive include: (1) the severity of the
crime at issue; (2) whether the plaintiff posed an immediate
threat to the safety of the defendants; (3) and whether the
plaintiff actively resisted arrest or attempted to evade arrest
by flight.

Outlaw v. City of Hartford, 884 F.3d 351, 366 (2d

Cir. 2018) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).
This determination requires the jury to look to the totality of
the circumstances.

Lennon v. Miller, 66 F.3d 416, 425 (2d Cir.

1995); see also Rogoz v. City of Hartford, 796 F.3d 236, 246 (2d
Cir. 2015).
“The ‘reasonableness’ of the amount of force used thus
‘must be judged from the perspective of a reasonable officer on
the scene . . . at the moment’ the force is used.”
F.3d at 246-47 (quoting Graham, 490 U.S. at 396).
4

Rogoz, 796
It follows

then that facts learned by an officer after an “arrest cannot be
used to justify the amount of force used to accomplish that
arrest.”

Lewis v. City of Albany Police Dep't, 332 F. App'x

641, 643 (2d Cir. 2009) (affirming preclusion of evidence
learned by arresting officers subsequent to use of force).
Rule 403 Probative-Prejudice Balancing
In addition to the relevance of the evidence that the
parties seek to offer or exclude in their motions, several other
Federal Rules of Evidence (the “Rules”) bear on the court’s
determination of admissibility.

Evidence that is otherwise

admissible under the Rules is generally subject to the
probative-prejudice balancing analysis provided in Federal Rule
of Evidence 403.

Rule 403 permits the exclusion of relevant

evidence, “if its probative value is substantially outweighed by
a danger of . . . unfair prejudice, confusing the issues, [or]
misleading the jury.”

Fed. R. Evid. 403.

District courts wield

broad discretion in making decisions under this probativeprejudice balancing test.

See Fiacco v. City of Rensselaer,

N.Y., 783 F.2d 319, 327-28 (2d Cir. 1986); see also United
States v. Abu-Jihaad, 630 F.3d 102, 131 (2d Cir. 2010) (“We
review a district court’s evidentiary rulings deferentially,
mindful of its superior position to assess relevancy and to
weigh the probative value of evidence against its potential for
unfair prejudice.”)

“In making a Rule 403 determination, courts
5

should ask whether the evidence's proper value 'is more than
matched by [the possibility] . . . that it will divert the jury
from the facts which should control their verdict.'"

Bensen v.

Am. Ultramar Ltd., No. 92-CV-4420, 1996 WL 422262, at *6
(S.D.N.Y. July 29, 1996) (quoting United States v. Krulewitch,
145 F.2d 76, 80 (2d Cir. 1944)).

The court applies the

foregoing analysis to the parties' pending motions and
objections.
DISCUSSION
In the instant motions, defendants move to preclude:
(i) plaintiff from arguing that his arrest was lawful and that
he was not resisting arrest, and from arguing or mentioning
claims against dismissed defendants; (ii) evidence relating to
indemnification of the defendant officers by New York City,
including references to defense counsel as “City Attorneys”;
(iii) admission of the New York Police Department’s (“NYPD”)
Patrol Guide; (iv) evidence of an investigation conducted by the
Civilian Complaint Review Board (“CCRB”) into the incident
giving rise to plaintiff’s claims, specifically documents
related to defendant Officer Ruiz’s alleged use of an extendable
baton or asp on plaintiff; (v) evidence of disciplinary
histories of, and complaints and prior lawsuits against,
defendant officers; (vi) testimony by plaintiff regarding
causation of his alleged injuries; (vii) evidence regarding
6

injuries Officer LaSala sustained in effecting plaintiff’s
arrest; (viii) plaintiff from arguing that defendants had
alternative means to effect his arrest; (ix) argument regarding
other instances of alleged police misconduct; and (x)
suggestions by plaintiff to the jury for a specific dollar
amount to be awarded as damages.

(See Def. Mem. at ii-iii.)

Additionally, defendants object to admission of: (a) files from
both the CCRB investigation and Internal Affairs Bureau (“IAB”)
investigation into the March 1, 2015 incident; (b) defendants’
disciplinary histories and performance evaluations; (c)
plaintiff’s medical records from Greene Correctional Facility
and Medialliance Medical Health Services; (d) evidence of
plaintiff’s medical examination related to his application for a
Commercial Driver License (“CDL”); and (e) the expert report of
Dr. Ali Guy, M.D.

(Def. Obj. at ii.).

Plaintiff did not oppose

defendants’ outstanding objections to trial exhibits.

(See ECF

No. 123, Plaintiff’s October 23, 2018 Letter.)
Plaintiff moves to preclude defendants from
introducing: (i) certain documents stemming from his arrest,
prosecution, and conviction for the March 1, 2015 incident; (ii)
certain evidence of his prior conduct; (iii) investigative
documents prepared by officers involved with plaintiff’s arrest;
(iv) evidence concerning plaintiff’s employment history; (v)
expert testimony from defendants’ witness regarding plaintiff’s
7

alleged hearing loss; (vi) testimony by Captain Edmonds and
Sergeant Hynes as irrelevant; 1 (vii) testimony by Officer Michaud
as untimely disclosed; (viii) pleadings and other discovery
responses filed by plaintiff; (ix) evidence of attorney remarks
made during depositions, along with evidence of the parties’ in
limine motion practice; and (x) testimony by certain officers
regarding the existence of probable cause. (See Pl. Mem.)
Additionally, plaintiff seeks to affirmatively admit the NYPD
Patrol Guide and certain photographs, including his booking
photograph.

(See id.)

Plaintiff objects to the admission of a

considerable portion of defendants’ exhibits under Federal Rules
of Evidence 401, 402, and 403, (See Pl. Obj. 2-5), and to
documentary evidence from plaintiff’s criminal trial under Rules
608 and 609, (See id. at 5-6).

Plaintiff also objects to a

number of defendants’ offered exhibits on hearsay grounds.

(See

id. at 6.) Finally, plaintiff objects to admission of several
exhibits as untimely disclosed.

(Id. at 7.)

Defendants opposed

plaintiff’s objections to the defense exhibits.

(ECF No. 122,

Defendants’ Response to Outstanding Objections (“Def. Resp.”).)
The parties have apparently reached agreements and
stipulations regarding some of their motions and objections.
Plaintiff has agreed not to refer to defense counsel as “City
Defendants’ submissions for the instant motions refer to Sergeant
Hynes, though plaintiff’s Complaint and Amended Complaint were apparently
brought when Hynes held the rank of Police Officer.
1

8

Attorneys” or to mention that defendants may be indemnified by
the City of New York.

(See ECF No. 117, Proposed Joint Pretrial

Order (“JPTO”) at 4.)

The court now addresses the parties’

remaining motions and outstanding objections in turn.
I.

Defendants’ Motions in Limine
A. Failed Theories of Liability and Collateral Estoppel
Defendants move to preclude plaintiff from arguing

that his arrest was unlawful.

(Def. Mem. at 3-4.) Defendants

contend that any argument by plaintiff regarding the lawfulness
of his arrest may invite the jury to determine an issue already
decided against plaintiff.

(Id. at 4.)

Additionally,

defendants seek to preclude plaintiff from introducing evidence
about claims brought in this matter that have been dismissed,
and damages arising from such claims.

(Id.)

Defendants further

argue that the doctrine of collateral estoppel bars plaintiff
from arguing that he was not resisting arrest.
did not oppose defendants’ motion.

(Id.)

Plaintiff

(See ECF No. 104,

Defendants’ Reply (“Def. Reply”) at 1.)
The court grants defendants’ motion to preclude
evidence or argument that plaintiff’s arrest was unlawful.
Further, plaintiff may not raise or mention dismissed claims
brought against former defendants, or officers not before this
court, or reference damages arising from claims that are not
part of the trial.

Such dismissed claims are not probative of
9

the ultimate issue before the jury: the reasonableness of the
alleged use of force by defendants.

Cf. Rasmussen v. City of

New York, 766 F. Supp. 2d 399, 412 (E.D.N.Y. 2011) (“[Plaintiff]
cannot predicate claims against named defendants based on the
acts of unnamed defendants since there is no basis for vicarious
or shared liability between them.”).

Further, even if such

evidence was probative, admission risks prejudice and confusion,
to the extent that the jury may find defendants liable for the
conduct of other officers.

Nothing in this decision impacts

plaintiff’s ability to offer evidence regarding the role of nonparty officers in the March 1, 2015 incident to the extent it
bears on defendants’ conduct.
The court next turns to defendants’ motion under the
collateral estoppel doctrine to preclude plaintiff from arguing
that he was not resisting arrest.

Before a court may apply

collateral estoppel, four requirements must be met: (1) the
issues of both proceedings must be identical; (2) the relevant
issues were actually litigated and decided in the prior
proceeding; (3) there must have been a full and fair opportunity
for the litigation of the issues in the prior proceeding; and
(4) the issues were necessary to support a valid and final
judgment on the merits in the prior proceeding.

Cent. Hudson

Gas & Elec. Co. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368
(2d Cir. 1995).
10

“[W]hile a plaintiff may be estopped in a civil case
from relitigating issues previously determined in a criminal
case, ‘such estoppel extends only to questions “distinctly put
in issue and directly determined” in the criminal prosecution.’”
Hemphill v. Schott, 141 F.3d 412, 416 (quoting Emich Motors v.
Gen. Motors, 340 U.S. 558, 568-69 (1951)).

“Collateral estoppel

requires a detailed examination of the record in the prior state
criminal case, including the pleadings, the evidence submitted,
and the jury instructions, in order to determine what issues
were actually litigated and necessary to support a final
judgment on the merits.”

Brown v. N.Y. State Supreme Court for

Second Judicial Dist., 680 F. Supp. 2d 424, 428 (E.D.N.Y. 2010)
(quoting Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000)).
The court finds that plaintiff is estopped from
asserting or presenting that evidence he was not resisting
arrest on March 1, 2015, because of his conviction at his
criminal trial for that offense.

See Bernazard v. Koch, No. 15-

CV-642, 2018 U.S. Dist. LEXIS 38575, at *9 (E.D.N.Y. Mar. 8,
2018).

Plaintiff’s conduct at issue in both the criminal trial

and this proceeding is identical, and was found beyond a
reasonable doubt by the criminal trial jury to constitute
resisting arrest.

(See ECF No. 100-1, Def. Mem. Ex. A,

Certificate of Disposition.)

Such conduct was actually

litigated and decided in the prior proceeding when the jury
11

returned a guilty verdict as to the resisting arrest count and
plaintiff had a full and fair opportunity to litigate that issue
in his criminal trial.
368.

Cent. Hudson Gas & Elec. Co., 56 F.3d at

Finally, the question of whether plaintiff intentionally

prevented an officer from effecting his authorized arrest was
necessary to support a valid and final judgment on the merits.
Id.
Although, “[t]he fact that a person whom a police
officer attempts to arrest resists . . . no doubt justifies the
officer's use of some degree of force, . . . it does not give
the officer license to use force without limit.”
F.3d at 165–66.

Sullivan, 225

Here, the degree to which plaintiff resisted

arrest remains a fact issue for the jury to consider as it
determines the reasonableness of defendants’ responsive use of
force.

Brown v. City of New York, 798 F.3d 94, 102 (2d Cir.

2015) (“Even resistance sufficient to result in conviction for
resisting arrest does not preclude a finding of ‘excessive force
in effectuating the arrest.’” (quoting Sullivan, 225 F.3d at
166)).
Notwithstanding plaintiff’s failure to oppose
defendants’ collateral estoppel argument, defendants have not
established that the jury in plaintiff’s criminal trial made
findings regarding the degree with which he resisted arrest.
Hemphill, 141 F.3d at 416 (“[W]e accept only those facts the
12

jury necessarily determined in returning [plaintiff’s]
conviction.”); Sullivan, 225 F.3d at 167 (“[N]one of the records
from the prior criminal proceeding . . . were before the
district court.

Thus . . . it is unclear which of [plaintiff’s]

acts formed the basis for his convictions.”).

Thus, the court

finds that plaintiff may not argue that he was not resisting
arrest, but that he may offer evidence that describes his
behavior during his arrest.

If he testifies that he offered no

resistance, his conviction for resisting arrest is likely to be
admitted.
Finally, defendants’ request for an instruction that
plaintiff’s arrest was lawful is denied without prejudice to
renew at the time of the charging conference.
B. NYPD Patrol Guide
Defendants next move to preclude plaintiff from
referring to or introducing any portion of the NYPD Patrol
Guide.

(Def. Mem. at 12-14.)

Defendants argue that the guide

is not relevant as it does not set forth the constitutional
standards against which defendants’ conduct is to be judged and
that any reference to a violation of the guide would confuse the
jury.

(Id.)

Plaintiff responds that the guide is relevant

under Second Circuit precedent and that excerpts of the patrol
guide are admissible as impeachment evidence.

13

Plaintiff

similarly moves for the court to affirmatively admit the patrol
guide through his motion in limine.

(Pl. Mem. at 14.)

Defendants are correct that a violation of the NYPD
Patrol Guide does not, in and of itself, constitute unreasonable
conduct in an excessive force case.

However, several courts in

this Circuit have permitted parties to introduce Patrol Guide
excerpts as relevant and helpful to determining the
reasonableness of an officer’s conduct.

See Gogol v. City of

New York, No. 15-CV-5703, 2018 WL 4616047, at *4 (S.D.N.Y. Sept.
26, 2018) (admitting Patrol Guide excerpts, subject to further
relevancy determinations, as relevant to question of
reasonableness); Nnodimele v. Derienzo, No. 13-CV-3461, 2016 WL
3561708, at *14, (E.D.N.Y. June 27, 2016) (permitting parties to
introduce relevant excerpts of Patrol Guide and holding that
“testimony regarding sound professional standards governing a
defendant’s actions can be relevant and helpful” (internal
quotation mark omitted)); Tardiff v. City of New York, No. 13CV-4056, 2017 U.S. Dist. LEXIS 135607, at *18-19, (S.D.N.Y. Aug.
23, 2017) (“Whether the officers violated the NYPD Patrol Guide
remains a significant factor to be considered in ultimately
determining whether the officers’ actions that day were
reasonable and subject to qualified immunity.”); but see Abeyta
v. City of New York, 588 F. App’x 24, 24 (2d Cir. 2014)

14

(affirming district court’s decision to preclude excerpts of
NYPD Patrol Guide under Rule 403).
Defendants’ motion to preclude introduction of the
Patrol Guide is denied.

Plaintiff may introduce certain

excerpts of the Patrol Guide, subject to the court’s further
assessment of relevance under Rule 402 and any Rule 403 issues.
Plaintiff shall identify the excerpts he intends to use as
affirmative evidence during the Final Pretrial Conference
scheduled in this matter.
Finally, the court finds the Patrol Guide is not
admissible under Federal Rules of Evidence 608 and 609 for
impeachment purposes.

However, should a witness testify on

direct as to some fact regarding the Patrol Guide, the court may
consider whether specific excerpts of the Patrol Guide may be
admitted.

See United States v. Benedetto, 571 F.2d 1246, 1250

(2d Cir. 1978) (“Once a witness (especially a defendant-witness)
testifies as to any specific fact on direct testimony, the trial
judge has broad discretion to admit extrinsic evidence tending
to contradict the specific statement, even if such statement
concerns a collateral matter in the case.”).

Only in the

foregoing circumstance may plaintiff offer the guide as
impeachment evidence.
C. CCRB Investigation

15

Defendants move to preclude plaintiff from introducing
evidence of a CCRB investigation into defendant Officer Ruiz’s
use of the asp as irrelevant and prejudicial.
14.)

(Def. Mem. at

In support, defendants argue that under Federal Rule of

Evidence 402 the CCRB determination has no tendency to prove a
fact of consequence in determining the action.

(Id.)

Plaintiff

responds that evidence stemming from CCRB investigations is
admissible under Rule 404(b) to establish a pattern of similar
conduct.

(Pl. Opp. at 6.)

Additionally, plaintiff argues that

the CCRB’s conclusions are admissible as impeachment evidence,
(id. at 7), and as exceptions to the hearsay definition either
as public records under Rule 803(8), (id.), or as party
admissions under Rule 801(d)(2), (id. at 9).

Plaintiff

indicates that he intends to use testimony of other police
officers made during the CCRB investigation to rebut defendants’
position that they had probable cause to arrest plaintiff.
(Id.)
First, plaintiff may not relitigate probable cause
which is not determinative of the excessive force issue in this
case; moreover, probable cause has been conclusively determined
by the jury that convicted plaintiff for the underlying offense.
See Almonte v. City of New York, No. 15-CV-6843, 2018 U.S. Dist.
LEXIS 141803, at *7 (S.D.N.Y. Aug. 21, 2018).

Thus, argument or

testimony by plaintiff as to a lack of probable cause for his
16

arrest is precluded.

Furthermore, the conclusions reached by

the CCRB are not relevant to the ultimate issue in this Section
1983 litigation, whether defendants violated plaintiff’s rights
under the Constitution.

As such, defendants’ motion to preclude

the CCRB investigation files and the CCRB’s conclusions is
granted.
The court next addresses plaintiff’s argument that the
CCRB investigation is admissible under Rule 404(b).

Evidence of

wrongful acts is inadmissible to prove a person’s propensity to
commit the act at issue.

Fed. R. Evid. 404(b)(1) (“Evidence of

a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular
occasion the person acted in accordance with the character.”);
see also United States v. Carboni, 204 F.3d 39, 44 (2d Cir.
2000).

However, under the Second Circuit “inclusionary rule,”

evidence of prior crimes, wrongs, or acts is admissible “for any
purpose other than to show a[n individual’s] . . . propensity,
as long as the evidence is relevant and satisfies the probativeprejudice balancing test of Rule 403.”

Carboni, 204 F.3d at 44

(quoting United States v. Inserra, 34 F.3d 83, 89 (2d Cir.
1994)).

The Second Circuit has held that unsubstantiated

complaints are not sufficiently probative to outweigh the
potential for unfair prejudice under Rule 403.

See Hardy v.

Town of Greenwich, 629 F. Supp. 2d 192, 197 (D. Conn. 2009)
17

(citing Berkovich v. Hicks, 922 F.2d 1018, 1023 (2d Cir. 1991));
see also Jean-Laurent v. Wilkinson, No. 05-CV-0583, 2009 WL
666832, at *3 (S.D.N.Y. Mar. 13, 2009) (permitting introduction
of defendants’ substantiated complaints less than ten years
old).
District courts have considerable discretion in
deciding whether to admit evidence related to prior acts.
Carboni, 204 F.3d at 44; see also Ismail v. Cohen, 899 F.2d 183,
188 (2d Cir. 1990).

Courts admit extrinsic acts as evidence of

a pattern or practice under Rule 404(b) when those acts share
“unusual characteristics” with the acts alleged or represent a
“unique scheme.”

Phillips v. City of New York, 871 F. Supp. 2d

200, 203 (E.D.N.Y. 2012) (quoting Berkovich, 922 F.2d at 1022).
More than the “mere repeated commission” of some act, the
proffering party must demonstrate that “[t]he device used [is]
so unusual and distinctive as to be like a signature.”

Wallace

v. Hano, No. 90–CV–2064, 1992 U.S. Dist. LEXIS 13388, at *19,
(S.D.N.Y. Sept. 3, 1992) (internal quotation mark omitted)
(quoting Benedetto, 571 F.2d at 1249).
Although other acts not admissible under Rule 404(b)
may nevertheless be admissible under Federal Rule of Evidence
608 as impeachment evidence bearing on a witness’s truthfulness,
Rule 608 prohibits the use of extrinsic evidence for such
purposes.

Fed. R. Evid. 608.

And, as a general matter,
18

“[c]omplaints against officers are not probative of a law
enforcement witness’s truthfulness or untruthfulness unless the
underlying conduct involves dishonesty.”

Bryant v. Serebrenik,

No. 15-CV-3762, 2017 WL 713897, at *2 (E.D.N.Y Feb. 23, 2017);
see also United States v. Horsford, 422 F. App’x 29, 30 (2d Cir.
2011) (“[T]he CCRB report indicates that the underlying conduct
involved no dishonesty.

Therefore, the report could not have

been probative of [the subject officer’s] truthfulness or
untruthfulness.”).
Plaintiff has failed to establish a pattern of
relevant conduct and merely offers blanket assertions that
evidence stemming from the CCRB investigation would do so.

The

court is left with plaintiff’s expressed intent to proffer
evidence and an insufficient evidentiary basis for admission
under Rule 404(b).

Given plaintiff’s insufficient proffer, the

court will grant defendants’ motion to preclude the CCRB
materials.
Furthermore, plaintiff’s argument that evidence
related to the CCRB investigation may be used for impeachment
evidence fails to fully account for Rule 608.

Plaintiff may not

use extrinsic evidence of prior conduct to attack a witness
officer’s character for truthfulness.

However, Rule 608 permits

the inquiry into such prior acts on cross-examination.
Plaintiff may do so at trial, if he can establish relevance
19

under Rule 402, satisfy Rule 403’s balancing test, demonstrate
that the CCRB evidence relates to the witness’s truthfulness or
lack thereof, establish a pattern of conduct, and satisfy a
hearsay exception.
Finally, though plaintiff may not use extrinsic
evidence stemming from the CCRB investigation to prove an
officer witness’s character for truthfulness, on crossexamination, he may use prior sworn statements of the trial
witness from the CCRB investigation to impeach under Rule 613 if
it is a prior inconsistent statement.
D. Defendants’ Disciplinary History and Prior Lawsuits
Defendants also move under Rule 404(b) to preclude
plaintiff from inquiring about defendants’ disciplinary
histories and any other civil rights actions brought against
defendants.

(Def. Mem. at 17.)

Plaintiff responds first that

the disciplinary and litigation history of a witness is
admissible as bearing on credibility and that, under Rule
404(b), such evidence is admissible where it concerns “wrongful
arrest, fabrication of evidence, perjury, and/or excessive force
used as a vehicle to attempt to justify an arrest.”
at 10.)

(Pl. Opp.

Further, plaintiff argues that defendants’ disciplinary

histories establish a pattern of conduct by defendants and a
motive for similar conduct.

(Id. at 12.)

20

Finally, plaintiff

argues that the evidence is also admissible as impeachment
material.

(Id.)
As with the CCRB investigation, defendants’

disciplinary histories constitute prior act evidence under Rule
404(b) and are inadmissible unless offered for some other
relevant purpose besides proving conformity with a character
trait and after satisfying Rule 403’s balancing test.

See I.C.,

As stated above, to establish that evidence is

supra.

admissible pursuant to Rule 404(b), the party seeking admission
must first demonstrate a pattern of relevant conduct that shares
unique characteristics.

Berkovich, 922 F.2d at 1022 (quoting

Benedetto, 571 F. 2d at 1249).
Again, as with the CCRB investigation, plaintiff has
not established a pattern of conduct permitting use of
defendants’ disciplinary histories under Rule 404(b).

Plaintiff

has not specified what documents in defendants’ disciplinary
histories he plans to offer, nor has he described what pattern
of conduct he seeks to prove, nor has he established any other
permissible purpose for admitting this evidence.

Likewise,

plaintiff has also not satisfied his burdens under Rules 402 or
403.

Given these shortcomings, the court grants defendants’

motion to preclude their disciplinary histories.
Furthermore, documentary evidence of defendants’
disciplinary histories is not admissible for impeachment
21

purposes under Rule 608.

Like the CCRB investigation evidence,

plaintiff may not introduce extrinsic evidence of prior acts to
attack a defendant witness’s character for truthfulness.
With respect to prior lawsuits brought against
defendants, the relevance of such evidence and the probativeprejudice balancing test depends on the nature of the prior
lawsuit, including whether the prior lawsuit is sufficiently
related to the instant case, and the purpose for which such
evidence will be used at trial.

Unrelated prior lawsuits are

unlikely to yield evidence sufficiently probative to overcome
the risk of unfair prejudice to defendants or confusing the
issues for the jury.

See, e.g., Nibbs v. Goulart, 822 F. Supp.

2d 339, 341 (S.D.N.Y. 2011) (precluding plaintiff from inquiring
into or offering evidence regarding “unrelated, prior lawsuits”
against defendants).

However, evidence of factually similar

lawsuits introduced for a permissible purpose under Rule 404(b)
may be admitted.

See, e.g., Bourguignon v. Lantz, No. 05-CV-

0245, 2008 WL 4183439, at *1 (D. Conn. Sept. 10, 2008) (denying
motion to exclude evidence of other lawsuits, to the extent the
lawsuits were factually similar and were not being offered to
show propensity).
Based on the foregoing, the court grants defendants’
motion to preclude unrelated prior lawsuits against and
disciplinary histories of defendants or other non-party
22

officers.

Plaintiff has not presented the court with specific

complaints or civil actions brought against defendants,
unrelated or otherwise.

See Viada v. Osaka Health Spa, Inc.,

No. 04-CV-2744, 2005 WL 3435111, at *1 (S.D.N.Y Dec. 12, 2005)
(denying vague motions in limine because “the Court is unable to
determine, with any degree of certainty, whether the [evidence]
sought to be excluded from the trial would be inadmissible under
any of the provisions of the Federal Rules of Evidence”);
Banushi v. Palmer, No. 08-CV-2937, 2011 WL 13894, at *2
(E.D.N.Y. Jan. 4, 2011) (precluding plaintiff from admitting
evidence under Rule 404(b) where he “provide[d] no details to
the court about the nature or content of the records at issue”).
E. Causation Testimony by Plaintiff
Defendants next move, separate and apart from their
previous Daubert motion, to preclude plaintiff from personally
testifying as to causation of his alleged injuries.
at 18.)

(Def. Mem.

In support, defendants argue that plaintiff’s alleged

injuries require expert testimony from a qualified witness to
establish causation because the injuries are sufficiently
complex.

(Id.)

Plaintiff appears to have misread defendants’

argument as against plaintiff’s witness, Dr. Ali Guy, and not as
against plaintiff himself.

(Pl. Opp. at 6.)

As such, plaintiff

argues generally for the liberal admissibility of expert
evidence, but does not address defendants’ argument that a
23

layperson, i.e. Bermudez, may not testify as to causation of the
injuries at issue in this case.

(Pl. Opp. at 14.)

As discussed in the court’s order deciding defendants’
Daubert motion, the court has already found that many of
plaintiff’s alleged injuries are sufficiently complex to require
a qualified expert to render a causation opinion.
Order at 13.)

(See Daubert

Thus, the court grants in part, and denies in

part, defendants’ motion, consistent with the following.
Plaintiff may testify as to his experience and condition
immediately following and shortly after defendants’ use of force
in effecting his arrest.

He may testify to his symptoms,

including headaches, visible lacerations, abrasions, or bruises,
and pain he experienced, based on injuries he received during
his arrest by defendants.

He may not testify as to the cause of

his alleged hearing loss, neurological or psychological
injuries, or other ailments which he learned of through his
treatment by medical experts not subject to cross-examination.
F. Officer LaSala’s Injuries
Defendants next move to preclude plaintiff from
introducing evidence of injuries sustained by non-party Officer
LaSala while arresting plaintiff under Federal Rules of Evidence
402 and 403.

(Def. Mem. at 20.)

Specifically, defendants argue

that evidence of LaSala’s injuries could mislead the jury to
believe that “something ‘bad’ or ‘wrong’ occurred when defendant
24

Officer Ruiz used the asp,” and that the details of LaSala’s
injuries would be both cumulative and prejudicial.
23.)

(Id. at 22-

Defendants further seek to preclude any mention of medical

treatment LaSala received for said injuries as irrelevant under
Rule 402.

(Id. at 23.)

Plaintiff responds that testimony

regarding Officer LaSala’s injuries is relevant as it is
evidence of the amount of force used during plaintiff’s arrest.
(Pl. Opp. at 16.)

Alternatively, plaintiff argues that LaSala’s

deposition testimony is admissible for impeachment purposes.
(Id.)
The court agrees with plaintiff that evidence of
officer LaSala’s injuries is relevant to demonstrate the force
used during plaintiff’s arrest by defendants, including the
force used by Officer Ruiz when employing the asp.

However, the

court finds that, under Rule 403, the probative value of
evidence of injuries to Officer LaSala is substantially
outweighed by the risk of confusing issues or misleading the
jury and wasting time.

Officer LaSala’s injuries cannot be

readily extrapolated to determine what injuries may result if
the asp is used on other body parts like soft tissue or larger
appendages.

Moreover, admission of this evidence would invite

jury confusion: this case is about the injuries plaintiff
sustained, not Officer LaSala.

As such, defendants’ motion is

granted.
25

If Officer LaSala or another Officer witness testifies
that Officer Ruiz did not use an asp, then defendants will open
the door to rebuttal evidence of Officer LaSala’s injuries.

In

such case, plaintiff may introduce evidence that Officer
LaSala’s fingers were broken but may not introduce evidence that
describes in any detail the specific injuries to and appearance
of his fingers.

Plaintiff may use Officer LaSala’s deposition

testimony to impeach him should he testify.
G. Alternatives to Use of Force
Next, defendants seek to preclude plaintiff from
arguing or offering evidence that defendants could have used
alternatives to the force employed in effecting plaintiff’s
arrest under Rules 402 and 403.

(Def. Mem. at 23.)

In support,

defendants attach a transcript of a status conference held
before the Honorable Judge Sydney Stein in the District Court
for the Southern District of New York on May 21, 2018, granting
a defense motion to preclude plaintiff from arguing what
officers should have done differently in an excessive force
case.

(ECF No. 103-1, Def. Mem. Ex. D.) Plaintiff responds that

evidence defendants could have used less force to arrest
plaintiff is probative of whether the force they used was
reasonable.

(Pl. Opp. at 17.)

The analysis in this case “does not include an
evaluation of the choices, or lack thereof, the officer has at
26

his disposal at the relevant moment.”

Estate of Jaquez v. City

of New York, No. 10-CV-2881, 2016 WL 1060841, at *5 (S.D.N.Y.
Mar. 17, 2016); Bancroft v. City of Mt. Vernon, 672 F. Supp. 2d
391, 406 (S.D.N.Y. 2009) (“[I]t does not matter that some less
intrusive alternative would have done the job.”).

Considering

alternatives here is akin to playing “Monday-morning
quarterback” when Graham instructs that the fact finder should
not do so.

Graham, 490 U.S. at 396 (“The ‘reasonableness’ of a

particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” (emphasis added)).

Thus, the availability

of alternatives to defendants is not relevant evidence.
Further, permitting plaintiff to inquire into alternative or
lesser means of force would also run afoul of Rule 403 by
confusing the triable issues before the jury.

As such,

defendants’ motion to preclude evidence and argument regarding
this issue is granted.
H. Other Instances of Alleged Police Misconduct
Defendants seek to preclude plaintiff from eliciting
testimony regarding other instances of alleged police misconduct
as irrelevant and prejudicial.

(Def. Mem. at 24-25.)

Plaintiff

does not oppose or otherwise respond, and the court grants
defendants’ motion.

At trial the jury must consider plaintiff’s

claims of excessive force by two officer defendants involved in
27

his arrest on March 1, 2015, and determine whether their actions
violated the Constitution.

Testimony and argument regarding

police actions not the subject of plaintiff’s claims are not
relevant to the jury’s task.

Further, evidence concerning

police misconduct in general can be viewed as a form of Rule
404(b) evidence and risks confusion and prejudice under Rule
403, leading the jury to find that these defendants acted in
conformity with the alleged misconduct of other officers.
Gogol, 2018 WL 4616047, at *6.

See

Accordingly, defendants’ motion

to preclude evidence of other police misconduct is granted.
I. Suggestion of Specific Damages Award
Defendants move to preclude plaintiff from suggesting
a specific dollar amount to the jury with respect to damages
during the opening statement, witness testimony, and summation.
(Def. Mem. at 25.)

Plaintiff opposes this motion,

requesting that the court permit him to request the jury award a
specific dollar amount or a range.

(Pl. Opp. at 19.)

Plaintiff

further suggests that a curative instruction to the jury may
alleviate defendants’ concerns regarding the potential for
prejudice.

(Id.)
As plaintiff correctly notes, the determination of

whether to allow a plaintiff to request a specific damages
amount from the jury is within the court’s discretion.

See

Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir.
28

1997).

Although the Second Circuit has not prohibited parties

from suggesting particular damages amounts to the jury, it has
cautioned against this practice.

See Ramirez v. N.Y.C. Off-

Track Betting Corp., 112 F.3d 38, 40 (2d Cir. 1997) (citing
Mileski v. Long Island R. R. Co., 499 F.2d 1169, 1172-74 (2d
Cir. 1974)); Consorti v. Armstrong World Indus., Inc., 72 F.3d
1003, 1016 (2d Cir. 1995), vacated on other grounds, 518 U.S.
1031 (1996); see also Thomas v. Medco, No. 95-CV-8401, 1998 WL
542321, at *15 (S.D.N.Y. Aug. 26, 1998) (“The practice of
requesting a specific dollar amount in damages is disfavored by
the Second Circuit because it risks unfairly swaying the jury by
‘anchor[ing] the jurors’ expectations of a fair award at a place
set by counsel, rather than by the evidence.’” (quoting
Consorti, 72 F.3d at 1016)).
Here, plaintiff has not offered any specific or
persuasive reason for the court to depart from the cautionary
practice in this Circuit and the court shall not.

The court

therefore grants defendants’ motion and precludes plaintiff’s
counsel from suggesting a specific damages amount in his opening
statement, summation, or through witness testimony, to avoid
anchoring the jury’s perspective with respect to damages as
evidence is presented during trial.

Plaintiff may, however,

still present evidence regarding the amount of his economic
damages, if any, but plaintiff may not suggest or state any
29

dollar amount of non-economic damages regarding pain and
suffering or punitive damages.

The court also notes that

plaintiff’s supplemental answers to interrogatories indicate
that he does not seek economic damages for lost wages or medical
care.

(ECF No. 100-2, Def. Mem. Ex. B.)
J. Outstanding Objections
Defendants’ objections as to the CCRB files and

defendants’ disciplinary histories have already been discussed
and resolved in the court’s decision on defendants’ related
motions in limine.

Defendants raise similar objections as to

IAB investigation files, and the court’s decision under Rules
402, 403, 404, and 608 precluding the CCRB files and
disciplinary histories applies with equal force to the IAB
files.

Thus, defendants’ objection as to these files is moot.

Defendants’ objection as to Dr. Guy’s expert report is also moot
in light of the court’s decision on defendants’ Daubert Motion.
(See Daubert Order at 18.)

The court now turns to defendants’

remaining objections.
Medical Records
Defendants object to plaintiff’s introduction of
certain medical records, Exhibits 2, 10, 11, and 14, as
inadmissible hearsay.

(Def. Obj. at 6.)

In support, defendants

argue that although certain hearsay evidence can be admitted
under the business records exception of Rule 803(6), plaintiff
30

has failed to offer a custodian witness to authenticate the
records and establish the factors necessary to apply the
business records exception.

(Id. at 7.)

Furthermore,

defendants argue, even properly authenticated medical records
would require an expert to explain the medical records to the
jury.

(Id.)
Medical records constitute hearsay but may, with

proper foundation, “be admi[tted] under Federal Rule of Evidence
803(6), provided they are prepared in the regular course of
business, near the time of occurrence, by a person with
knowledge and are properly authenticated.”

Hodges v. Keane, 886

F. Supp. 352, 356 (S.D.N.Y. 1995) (citing Romano v. Howarth, 998
F.2d 101, 108 (2d Cir. 1993)); see also United States v.
Williams, 205 F.3d 23, 34 (2d Cir. 2000).

The court sustains

defendants’ objection but will permit plaintiff the opportunity
to attempt to authenticate the records, however, the court notes
that plaintiff’s witness list identifies no custodian for the
records.

(See JPTO at 4.)
As for defendants’ Rule 702 argument, not all

information contained in a medical record is beyond the ken of
the jury.

Nonetheless, should the plaintiff offer evidence from

his medical records that falls under Rule 702, he must do so
through a qualified expert.

Fed. R. Evid. 702.

Given the

court’s decision on defendants’ Daubert motion, plaintiff is
31

limited to medical testimony as specified in that decision.
Thus, to the extent plaintiff authenticates the records,
testimony by plaintiff’s treating or examining physician shall
be consistent with the court’s prior Daubert decision.
Plaintiff’s Medical Examination
Finally, defendants object to plaintiff’s Exhibit 13,
a medical examination report dated January 16, 2015, and related
to his Department of Motor Vehicles application for a CDL as
inadmissible hearsay.

(Def. Obj. at 8.)

Further, defendants

argue under Rule 403 that, even if it is not hearsay, the
medical examination would mislead the jury to conclude that
plaintiff had no injuries shortly before the March 2015 incident
and that any injuries he endured after the March 2015 incident
must have resulted from his arrest.

(Id. at 8-9.)

As with defendants’ objection to the medical records
above, plaintiff’s CDL medical examination is inadmissible
hearsay unless it is authenticated through a proper custodian
and a proper evidentiary basis for admission is established.
The parties’ proposed JPTO does not indicate that plaintiff
plans to call an appropriate custodian.
Even if plaintiff establishes that the business
records exception applies to the CDL examination, he must
nevertheless demonstrate that its probative value is not
substantially outweighed by the risk that it will mislead the
32

jury.

Whatever probative value the examination evidence

carries, presenting the jury with plaintiff’s medical
examination on the eve of his arrest asks the jury to find that
his injuries after the incident must have resulted from
defendants’ use of force.

That inference would be an

impermissible shortcut to proving causation, especially when the
court has already found that a qualified medical expert is
required to prove causation for many of plaintiff’s alleged
injuries.

(See Daubert Order at 12.)

Cf. Robinson v. Suffolk

Cty. Police Dep’t, No. 08-CV-1874, 2011 WL 4916709, at *4
(E.D.N.Y. Oct. 17, 2011) (preventing treating physician from
offering causation testimony predicated on bare comparison of
spinal scans taken before and after incident giving rise to
suit).

The court grants defendants’ motion to preclude the

January 2015 examination.
II.

Plaintiff’s Motions in Limine
A. Documents Concerning Plaintiff’s Arrest and Conviction
Plaintiff moves to preclude defendants from offering

certain police records and other documents related to
plaintiff’s arrest, prosecution, and conviction for his March 1,
2015 conduct as irrelevant and prejudicial.

(Pl. Mem. at 4.)

Additionally, plaintiff argues that certain documents related to
his arrest constitute inadmissible hearsay and, even if
admissible, would be cumulative under Rule 403.
33

(Id. at 12-13.)

Defendants respond that plaintiff’s arrest, prosecution, and
conviction documents are directly relevant to the reasonableness
of the force employed by defendants as they illuminate the
circumstances presented to the arresting officers and
demonstrate the severity of the crime for which plaintiff was
arrested.

(Def. Opp. at 4.)
Defendants’ approach to relevance in an excessive

force case is overbroad.

The court agrees that the severity of

a crime for which a plaintiff is arrested is relevant insofar as
it bears on the circumstances presented to a reasonable officer
at the time of the arrest.

Graham, 490 U.S. at 397; see also

Stephen v. Hanley, No. 03-CV-6226, 2009 WL 1471180, at *3
(E.D.N.Y. May 21, 2009).

By way of example, defendants offer

the 911 dispatcher’s report, also known as a SPRINT Report, (Ex.
X), to argue that the defendants were responding to a report of
a “man beating his wife” and thus were aware of the severity of
the crime precipitating plaintiff’s arrest.

(Def. Opp. at 4.)

Subject to proof that defendants received this transmission,
such evidence would be relevant.
However, trial testimony and documents developed in a
related criminal investigation or prosecution are not
necessarily relevant to an excessive force case simply because
the documents are probative of the severity of the plaintiff’s
offense conduct.

What matters, and what is relevant, are the
34

facts known to the arresting officers at the time they employed
force to arrest plaintiff.

See Stephen, 2009 WL 1471180, at *4

(finding plaintiff’s subsequent conviction for criminal
possession of a controlled substance following his arrest was
“irrelevant to whether the [arresting] officers’ actions were
objectively reasonable before and during the course of the
incident at issue”).
Though the jury must consider the totality of
circumstances, the totality is viewed through the eyes of
reasonable officers on the scene of the arrest, and not with
“the 20/20 vision of hindsight.”

Graham, 490 U.S. at 396.

Ultimately, the question is whether the officers’ actions were
“‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation.”

Id. at 397.

That is, the

totality is limited to the circumstances a reasonable officer
would be aware of at the time defendants employed force to
arrest plaintiff regarding: the severity of the crime; whether
plaintiff posed an immediate threat to defendants; and whether
plaintiff actively attempted to evade or resist arrest.

Id. at

396; see also Stephen, 2009 WL 1471180, at *10 (“The offense for
which [plaintiff] was subsequently convicted . . . does not
provide insight into whether he posed a threat to the safety of
the defendants or attempted to evade arrest, and, thus, whether
35

the defendants' use of force was reasonable.”).

Thus, relevant

and admissible evidence must tend to prove the circumstances
confronting defendants leading up to and during plaintiff’s
arrest.
Documents concerning the events that occurred after
plaintiff’s arrest are unlikely to be relevant under this
standard.

The severity of plaintiff’s crime of arrest, as

proven later in a criminal trial, is not relevant for the
purposes of evaluating whether defendants’ use of force at the
time of plaintiff’s arrest was reasonable.

A photograph of

plaintiff’s wife and child, for example, taken after plaintiff’s
arrest and demonstrating injuries the two sustained by
plaintiff, may indeed be relevant.

But defendants must first

establish that they observed the wife and child before
encountering and arresting plaintiff, and that the pictures are
accurate representations of the conditions of the wife and child
at that time.
Because both parties offer only cursory descriptions
of the post-arrest evidence stemming from the officers’
investigation and plaintiff’s prosecution, the court cannot
fully rule under Rule 402.

As such, the court grants

plaintiff’s motion without prejudice to defendants to explain
the relevance of the exhibits not precluded under the foregoing
relevance requirements.

The parties shall confer to resolve
36

their remaining evidentiary disputes, consistent with this
order, and be prepared to offer proof at the Final Pretrial
Conference if necessary.
Even if defendants establish relevance, the court must
still weigh the probative value of such evidence against the
risk of unfair prejudice to plaintiff pursuant to Rule 403.

The

court will rule accordingly should defendants establish the
relevance of their offered exhibits.

However, the court finds

that plaintiff will not suffer unfair prejudice from admission
of the 911 dispatcher’s report in this case because the
appropriate or excessive use of force during his arrest is an
issue for the jury.

Moreover, the 911 evidence would not be

offered for the truth of the matter, but instead provide
background as to the events leading up to his arrest.
B. Plaintiff’s Past Conduct
Plaintiff next moves to preclude defendants from
presenting certain evidence of plaintiff’s past conduct as
inadmissible character evidence under Federal Rule of Evidence
404.

(Pl. Mem. at 6.)

Defendants respond that this motion is

impermissibly overbroad but nonetheless focus on plaintiff’s
past conduct related to his status as a parolee.
5.)

(Def. Opp. at

Defendants argue that plaintiff’s alleged status as a

parolee is relevant because it explains why he fled officers and
resisted arrest.

(Id.)
37

As with the court’s determination of what is relevant
in an excessive force case, plaintiff’s status as a parolee may
be relevant if defendant officers knew of his parolee status at
the time they employed force to arrest him.

However, defendants

have not so argued and do not otherwise offer a permissible
purpose for admission of plaintiff’s prior acts or status as a
parolee.

Moreover, prior act evidence, even if offered for a

permissible purpose under Rule 404(b), will likely not be
relevant to the jury’s determination of whether defendants acted
reasonably in effecting plaintiff’s arrest.

Therefore, the

court grants plaintiff’s motion. 2
C. Photographs of Plaintiff
Plaintiff next moves for the admission of certain
photographs of plaintiff, including his booking photograph or
mugshot.

(Pl. Mem. at 15.)

Defendants do not object to the

admission of the photographs in general, subject to the laying
of a proper foundation.

(Def. Opp. at 9-10.)

As it appears the

parties agree on the admission of plaintiff’s booking
photographs, the court denies plaintiff’s motion as moot.
D. Plaintiff’s Employment Status
Plaintiff moves to preclude testimony related to his
unemployment leading up to his March 1, 2015 incident as
Neither party addressed whether plaintiff’s past conduct evidence would
be admissible for impeachment purposes under Rules 608 or 609. The court
will rule at such time if defendants offer evidence under either Rule.

2

38

irrelevant.

(Pl. Mem. at 16.)

Defendants respond that they do

not intend to offer such evidence other than for impeachment
purposes or if plaintiff opens the door to this topic.
Opp. at 10.)

(Def.

Again, the parties appear to agree on this issue,

and plaintiff does not appear to be seeking damages for lost
income.

The court grants plaintiff’s motion to the extent

defendants may attempt to offer evidence of plaintiff’s
employment status other than for impeachment.
E. Testimony of Dr. Friedman
Plaintiff seeks to preclude the expert testimony of
defendants’ witness, Dr. David Friedman, because he failed to
perform diagnostic tests on plaintiff.

(Pl. Mem. at 16.)

In

support, plaintiff points to Dr. Friedman’s report, disclosed by
defendants during discovery, in which he states audiometry
testing “requires active, willful, and honest patient
participation.”
Rep.”) at 3.)

(See ECF No. 106-5, Pl. Mem. Ex. E (“Friedman
Defendants respond that Dr. Friedman’s offered

opinion would assist the trier of fact and point out that
plaintiff cites no legal authority for his argument.

(Def. Opp.

at 11.)
The court agrees with defendants that a failure to
perform diagnostic tests on a plaintiff claiming injury does not
by itself warrant preclusion of an expert’s testimony.

Indeed,

plaintiff cites no authority for this position and the court
39

finds no basis in law for it.

“Evaluation of the patient’s

medical records, like performance of a physical examination, is
a reliable method of concluding that a patient is [injured] even
in the absence of a physical examination.”

Deutsch v. Novartis

Pharm. Corp., 768 F. Supp. 2d 420, 483 (E.D.N.Y. 2011) (citing
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 762 (3d Cir.
1994)).
Dr. Friedman’s testimony is admissible, and plaintiff
is free to cross-examine defendants’ expert to dispute the
weight and reliability of his opinion, including his lack of an
examination of plaintiff.

See Winter v. Hartford Life &

Accident Ins. Co., 309 F. Supp. 2d 409, 415 (E.D.N.Y. 2004)
(“Because [the medical expert] never examined the plaintiff, his
opinions about [plaintiff]’s medical condition are entitled to
less weight than the plaintiff's treating physicians who were in
a better position to evaluate the extent and severity of her
pain.”).

Plaintiff’s motion to preclude Dr. Friedman’s

testimony is denied.
F. Testimony of Captain Edmonds and Officer Hynes
Plaintiff seeks to preclude two NYPD witnesses,
Captain Edmonds and Police Officer Hynes, former defendants in
this case, from testifying because they were not present during
plaintiff’s arrest and thus cannot offer relevant testimony.
(Pl. Mem. at 16-17.)

Captain Edmonds first interacted with
40

plaintiff, for the purposes of this lawsuit, in the hospital
while plaintiff was receiving care for injuries allegedly
sustained during his arrest.
at 2.)

(See ECF No. 106-3, Pl. Mem. Ex. C

Officer Hynes, according to plaintiff, was in the back

of a police cruiser and unable to exit the vehicle at the time
of plaintiff’s arrest.

(Pl. Mot at 17.)

Defendants argue in

response that both witnesses would offer relevant testimony, but
do not offer specifics.

(Def. Opp. at 12.)

Defendants do not state in their submission what
relevant testimony Captain Edmonds would offer from his personal
observations and interactions with plaintiff after plaintiff’s
arrest.

As for Officer Hynes, despite his temporary confinement

during the moment of plaintiff’s arrest, defendants claim that
he may offer relevant testimony concerning the events leading up
to, and immediately following, plaintiff’s arrest, including
plaintiff’s flight from responding officers and plaintiff’s
demeanor immediately following the incident.

Of relevance in

this lawsuit is the knowledge of the defendant officers, not
Officer Hynes.

And, to the extent Officer Hynes observed the

same things the defendants did, his testimony could corroborate
defendants’ testimony but also would likely be cumulative.

As

such, the court grants plaintiff’s motion but will permit
defendants at the Final Pretrial Conference the opportunity to

41

explain the general nature of Captain Edmonds’ and Officer
Hynes’ expected testimony.
G. Officer Michuad’s Testimony
Next, plaintiff moves to preclude the testimony of
Officer Michaud.

(Pl. Mem. at 17.)

Plaintiff contends that

defendants disclosed Officer Michaud as an individual with
discoverable information after the close of fact discovery.
(Id.)

Defendants respond that plaintiff has not shown why

admission of Officer Michaud’s testimony would prejudice
plaintiff and has not cited to legal authority for preclusion.
(Def. Opp. at 12-13.)

Defendants further argue that disclosure

was late, by only one day, due to an administrative error and
that Officer Michaud’s identity and role in plaintiff’s arrest
was known to plaintiff more than a year before fact discovery
ended.

(Id. at 13.)
Federal Rule of Civil Procedure 26 requires disclosure

during discovery of the name of “each individual likely to have
discoverable information . . . that the disclosing party may use
to support its claims or defenses, unless the use would be
solely for impeachment.”

Fed. R. Civ. P. 26(a)(1)(A)(i).

“If a

party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence . . . at a trial,
unless the failure was substantially justified or is harmless.”
42

Fed. R. Civ. P. 37(c)(1).

A district court may preclude the

testimony of an untimely-disclosed witness, but must first
consider four factors:
(1)

the party’s explanation for the failure to comply
with the [disclosure requirement];

(2)

the importance of the testimony of the precluded
witness;

(3)

the prejudice suffered by the opposing party as a
result of having to prepare to meet the new
testimony; and

(4)

the possibility of a continuance.

Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006); see
also Outley v. City of New York, 837 F.2d 587, 590 (2d Cir.
1988).

“Before the extreme sanction of preclusion may be used

by the district court, a judge should inquire more fully into
the actual difficulties which the violation causes, and must
consider less drastic responses.”

Outley, 837 F.2d at 591.

Preclusion is a harsh sanction, and “fair play may” militate
against preclusion “where failure to comply is due to a mere
oversight of counsel amounting to no more than simple
negligence.”

Id. (quoting Cine Forty-Second St. Theatre Corp.

v. Allied Artists Pictures Corp., 602 F.2d 1062, 1068 (2d Cir.
1979)).

43

Here, defendants’ spare explanation does not tip the
first factor in their favor.

It is unclear what “administrative

error” caused the delayed disclosure and why it is excusable.
On the other hand, plaintiff has not made a showing much less an
allegation of bad faith, thus suggesting that defense counsels’
oversight was due to negligence.

As such, the first factor

weighs marginally against preclusion as the disclosure was
indeed only one day late, indicative of an oversight by
defendants’ counsel.
Turning to the second factor, defendants argue that
Officer Michaud’s expected testimony is important as it goes to
the severity of plaintiff’s crime and his condition following
his arrest.

Accordingly, the parties’ Proposed JPTO, lists

Officer Michaud as one of defendants’ witnesses and indicates
his expected testimony will cover “the events leading up to
plaintiff’s apprehension [and] plaintiff’s apprehension.”
at 5.)

(JPTO

The same chart lists one other witness who will testify

about the events leading up to plaintiff’s arrest, Officer
Hynes, and at least five witnesses who will testify as to
plaintiff’s physical apprehension.

(Id.)

Given this bench of

witnesses with similar testimony, it appears Officer Michaud is
not of critical importance to defendants’ case, and the second
factor weighs in favor of preclusion.

44

As for the third factor, plaintiff is likely to suffer
prejudice in preparing to face Officer Michaud’s testimony
without the benefit of a deposition or timely disclosure.

The

court notes, however, that this witness was disclosed only one
day after the close of fact discovery, and plaintiff could have
sought to reopen discovery to obtain a deposition of Officer
Michaud.

(Pl. Mem. Ex. D.)

As further mitigation of their

tardy disclosure, defendants assert, and plaintiff does not
dispute, that plaintiff received the CCRB investigative file,
which described Officer Michaud’s involvement, on October 10,
2015.

(Def. Opp. at 13.)

Plaintiff has had more than a year to

address defendants’ untimely disclosure but, for unexplained
reasons, waited until the eve of trial to seek relief.

As such,

the third factor weighs against preclusion.
Finally, a continuance in this matter is unlikely
given the proximity to trial.

It is unclear what prejudice

would be cured by a continuance, as plaintiff has not
demonstrated prejudice nor requested a continuance.

Moreover,

“courts have looked with disfavor upon parties who claim
surprise and prejudice but who do not ask for a recess.”
Outley, 837 F.2d at 590 (quoting Johnson v. H.K. Webster, Inc.,
775 F.2d 1, 8 (1st Cir. 1985)).

Nevertheless, the court finds

that delaying trial would not serve the aims of either party or
the court and is simply not feasible.
45

Thus, this factor weighs

in favor of preclusion as a continuance is impracticable at this
juncture.
Analysis of the factors yields a close call with
neither party offering strong arguments in support of their
positions.

Although the disclosure was late by only one day,

the court is inclined to enforce deadlines and the Federal Rules
of Civil Procedure.

Accordingly, plaintiff’s motion is granted

and Officer Michaud may not testify.
H. Pleadings and Discovery Responses
Plaintiff next moves to preclude defendants from
introducing the pleadings and discovery responses in this case
as hearsay and as potentially prejudicial.

(Pl. Mem. at 18.)

Defendants respond that the pleadings and responses are indeed
sworn statements, are considered party admissions, and are not
hearsay at least for the purpose of impeachment.

(Def. Opp. at

14-15.)
Although plaintiff’s Amended Complaint is not a sworn
document, the court agrees with defendants that plaintiff’s
pleadings are admissible for impeachment purposes and as party
admissions, excepted from the definition of hearsay.

See

Official Comm. of Unsecured Creditors of Color Tile, Inc. v.
Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003)
(“[A]llegations in the Second Amended Complaint are ‘judicial
admission[s]’ by which [plaintiff] was ‘bound throughout the
46

course of the proceeding.’” (quoting Bellefonte Re Ins. Co. v.
Argonaut Ins. Co., 757 F.2d 523, 528 (2d Cir. 1985))).
Plaintiff’s verified discovery responses are also admissions and
thus admissible.

Skinner v. City of New York, No. 15-CV-6126,

2017 U.S. Dist. LEXIS 104650, at *14-15, (E.D.N.Y. Apr. 7, 2017)
(citing Shaw v. City of New York, No. 95-CV-9325, 1997 U.S.
Dist. LEXIS 4901, at *7 (S.D.N.Y. Apr. 15, 1997)).

Thus,

plaintiff’s motion to preclude his pleadings and discovery
responses is denied and the court will allow defendants to use
plaintiff’s discovery responses for impeachment purposes.
I. Motions in Limine and Attorney Sidebars
Plaintiff moves to preclude defendants from referring
to plaintiff’s attempt to exclude certain evidence through the
instant motions in limine or from admitting statements by
attorneys made during sidebar discussions at the depositions in
this case.

(Pl. Mem. at 19.)

In response, defendants represent

that they do not intend to do either.

(Def. Opp. at 18.)

Defendants explain that attorney statements are not evidence,
but note that objections made during depositions are preserved
for trial.

(Id.)
As it appears the parties agree on this issue, the

court denies plaintiff’s motion as moot.
J. Officer Testimony on Probable Cause

47

Plaintiff seeks to preclude any testimony from officer
witnesses regarding the issue of probable cause in this case.
(Pl. Mem. at 19-20.)

Plaintiff argues that any opinion offered

by the officers as to the existence of probable cause would be
testimony in the form of a legal conclusion.

(Id.)

Defendants

respond that the legal conclusion plaintiff seeks to preclude—
whether probable cause existed for plaintiff’s arrest—was
already established in plaintiff’s criminal trial for the
underlying offense.

(Def. Opp. at 19-20.)

Moreover, defendants

argue, the officers involved in plaintiff’s arrest are
percipient witnesses and should not be precluded from offering
eye-witness testimony regarding the facts and circumstances
surrounding plaintiff’s arrest.

(Id. at 19.)

As an initial matter, and as discussed above, the
court notes that the existence of probable cause is not at issue
in this case and neither party may relitigate it.

Officer

witnesses may testify to their relevant, personal observations
in arresting plaintiff and, in so doing, would not necessarily,
or improperly, offer a legal conclusion regarding probable
cause.

Indeed, the jury that convicted plaintiff already

determined there was probable cause for his arrest.

Green v.

Gonzalez, No. 09-CV-2636, 2010 U.S. Dist. LEXIS 127817, *7
(S.D.N.Y. Nov. 22, 2010) (“A conviction of the plaintiff
following arrest is viewed as establishing the existence of
48

probable cause.” (quoting Cameron v. Fogarty, 806 F.2d 380, 387
(2d Cir. 1986))).

Thus, a witness’s testimony made accordingly

would not be improper and plaintiff’s motion to preclude officer
testimony regarding the existence of probable cause is denied.
Cf. Cameron v. City of New York, 598 F.3d 50, 62 (2d Cir. 2010)
(finding prosecutor witnesses’ opinion as to existence of
probable cause inadmissible unless witness’s subjective belief
regarding the same is relevant to outcome of case).
K. Outstanding Objections
Relevance
Plaintiff objects to a host of exhibits, 23 in total,
under Rules 401 and 402 as irrelevant.

(Pl. Obj. at 2-3.)

Specifically, plaintiff objects to: arrest reports,
investigation documents, and criminal case files related to his
arrest and prosecution for the underlying crime in this case,
(Def. Exs. A-E, G, I, K, L, S, V, X); results of a blood test
run on the asp used by defendant Officer Ruiz, (Def. Ex. P);
photos of plaintiff’s wife and child, (Def. Exs. T, U); a
parolee chronological report from the New York State Department
of Correction and Community Supervision, (Def. Ex. W);
transcripts and recordings of plaintiff’s phone calls made while
incarcerated, (Def. Ex. Z); the Complaint and Amended Complaint
in this matter and complaints brought by plaintiff in three
civil cases in the Southern District of New York, (Def. Exs. BB49

FF); and any transcript of sworn testimony by plaintiff, (Def.
Ex. KK).

(Id.)
As an initial matter, defendants respond that they

intend to use the complaints from plaintiff’s other actions,
plaintiff’s prison phone calls, and plaintiff’s prior sworn
testimony, Exhibits BB through FF and Exhibit KK, as impeachment
material for purposes of refuting plaintiff’s purported damages.
(Def. Resp. at 5.)

Accordingly, plaintiff’s relevance

objections to those six exhibits are overruled and denied to the
extent defendants do not offer those exhibits for nonimpeachment purposes.
The court has already discussed what is relevant in
this matter in addressing plaintiff’s motions in limine above.
See II.A, supra.

Defendants’ blanket assertion that their

offered exhibits are part of the “narrative fabric” of
plaintiff’s arrest and thus contribute to a totality of the
circumstances determination does not, by itself, carry
defendants’ evidentiary burden.

Although defendants’ offered

exhibits relating to plaintiff’s arrest and prosecution may shed
some light on the facts presented to a reasonable officer on the
scene, the court will not parse through the cursory descriptions
both parties have offered for each exhibit to determine its
relevance under Rules 401 and 402.

50

The court cannot rule with specificity on the
admissibility of most of these exhibits, or of specific portions
of each exhibit.

Instead, the parties must confer as to their

remaining disputes, and defendants will be given an opportunity
to establish during the Final Pretrial Conference the relevance
of exhibits not already precluded by this order. 3
Finally, the court finds that Exhibit P, the blood
test of defendant Officer Ruiz’s asp, is relevant because it is
probative of the conditions of the asp at the time of, or
shortly after, plaintiff’s arrest and the alleged use of force.
Plaintiff’s objection to this exhibit is overruled, subject to
defendants’ laying of a proper foundation and proof of the chain
of custody.
Risk of Unfair Prejudice
Plaintiff also objects to the same 23 exhibits on Rule
403 grounds arguing that their probative value is substantially
outweighed by the risk of unfair prejudice to plaintiff.
Obj. at 3.)

(Pl.

Defendants admit that there may be some risk of

prejudice to plaintiff given the nature of the crime he was

Defendants purpose in offering Exhibits G, K, and L, the criminal court
complaint, Certificate of Disposition, and case file related to plaintiff’s
March 1, 2015 arrest is not clear. Indeed, consistent with the court’s
determination above, in order to be admissible these three post-arrest,
trial—related exhibits must shed light on the circumstances known to a
reasonable officer on the scene at the time of plaintiff’s arrest. Rogoz,
796 F.3d at 246-47 (quoting Graham, 490 U.S. at 396). The court is skeptical
that defendants will carry their burden, and further notes the risk of unfair
prejudice to plaintiff from admitting these documents.
3

51

convicted of, but that such prejudice is not unfair and does not
substantially outweigh the probative value of the exhibits.
(Def. Resp. at 7.)
As the court stated above, the relevance of 22 of the
23 offered exhibits is not immediately clear from the parties’
submissions, and that some are likely precluded by the courts in
limine rulings.

And, to determine whether the probative value

of each exhibit substantially outweighs the risk of prejudice,
the court must first determine the former.

As stated above, the

parties shall confer to resolve their remaining evidentiary
disputes concerning these exhibits prior to the Final Pretrial
Conference.

The court will then resolve any Rule 403 issues

with the remaining relevant exhibits.

As for Exhibit P, which

the court has found relevant, plaintiff has not established a
risk of unfair prejudice substantially outweighing its probative
value.

Thus, his objection under Rule 403 is overruled.
Prior Bad Acts
Plaintiff also objects to 12 exhibits consisting of

investigation materials in plaintiff’s criminal case under Rules
608 and 609 as impermissible impeachment evidence that does not
bear on plaintiff’s veracity.
G, K, L, S, V-X, KK.)

(Pl. Obj. at 5; Def. Exs. A, C-E,

Defendants once again respond that

plaintiff’s Certificate of Disposition, (Ex. K), parole
documentation, (Ex. W), and prior sworn testimony, (Ex. KK), are
52

admissible as proper impeachment evidence.
10.)

(Def. Resp. at 9-

The other nine exhibits, according to defendants, are

directly probative of a fact at issue in the matter and will not
be used solely for impeachment.

Defendants offer as a

hypothetical that they may offer evidence of plaintiff’s parole
status to rebut any testimony on direct to the contrary.

(Id.)

First, plaintiff’s prior sworn testimony, (Ex. KK),
may be used for impeachment purposes as a prior inconsistent
statement under Federal Rules of Evidence 613 and 801(d)(1).
Further, Rule 608 does not bar admission of extrinsic evidence
for purposes of impeachment by prior inconsistent statement.
See Fed. R. Evid. 608 advisory committee’s note to 2003
amendment (explaining that the Rule’s application is limited to
proving a witness’s character for truthfulness, and that the
admissibility of extrinsic evidence offered for other grounds of
impeachment, such as contradiction or prior inconsistent
statement, is left to Rules 402 and 403); see also United States
v. Rivera, 273 F. App’x 55, 58 (2d Cir. 2008) (“A witness may be
impeached by extrinsic proof of a prior inconsistent statement
only as to matters which are not collateral, i.e., as to those
matters which are relevant to the issues in the case and could
be independently proven.”); United States v. Winchenbach, 197
F.3d 548, 558 (1st Cir. 1999).

Finally, plaintiff does not

explain how his prior sworn testimony would fall under Rule 609.
53

Thus, plaintiff’s objection under Rules 608 and 609 as to this
Exhibit is overruled.
Second, and as discussed above, defendants have not
established the relevance of the remaining exhibits and the
court must determine whether the exhibits may be properly used
as impeachment evidence under Rules 608 and 609.

As discussed

above, Rules 608 and 609 serve as an additional exception to the
general prohibition against character evidence in Rule 404(a).
Rule 608 permits limited inquiry on cross-examination into a
witness’s past conduct to prove the witness’s character for
truthfulness or untruthfulness but prohibits the admission of
extrinsic evidence for the same purpose.

Fed. R. Evid. 608;

Benedetto, 571 F.2d at 1250 (“[W]hile a character witness may be
asked on cross-examination about ‘specific instances of
conduct,’ such acts may not be proved by extrinsic evidence.”).
Rule 609, by comparison, permits evidence of a witness’s prior
criminal conviction for purposes of proving his character for
untruthfulness subject to certain limitations regarding the
nature of the conviction and its age.

Fed. R. Evid. 609.

Under Rule 608, defendants may not impeach plaintiff’s
credibility as a witness through the admission of any of these
exhibits, extrinsic evidence by definition, and would be limited
to inquiry on cross-examination.

United States v. Shoreline

Motors, 413 F. App’x 322, 329 (2d Cir. 2011); see also United
54

States v. Masino, 275 F.2d 129, 133 (2d Cir. 1960) (“When a
witness is cross-examined for the purpose of destroying his
credibility by proof of specific acts of misconduct not the
subject of a conviction, the examiner must be content with the
answer.

The examiner may not, over objection, produce

independent proof to show the falsity of such answer.”).

As

these exhibits constitute extrinsic evidence, plaintiff’s
objection under Rule 608 is sustained.
Defendants must satisfy Rule 609 to admit extrinsic
evidence of plaintiff’s conviction, such as case documents, for
purposes of impeachment and must also satisfy the Rule’s
requirements as to the nature and age of the conviction.

E.g.,

Fed R. Evid. 609(a)(1)(A) (requiring admission, subject to Rule
403, of evidence of witness’s felony conviction in a civil
case); Fed. R. Evid. 609(a)(2) (requiring admission of evidence
of witness’s conviction involving dishonest act or false
statement); Fed. R. Evid. 609(b) (describing limitations
applicable to convictions older than 10 years); see also
Fletcher v. City of New York, 54 F. Supp. 2d 328, 331 (S.D.N.Y.
1999).

Defendants have not met their burden by establishing

that any of plaintiff’s convictions bear on his character for
truthfulness, and have not otherwise met Rule 609’s
requirements.

Thus, the court sustains plaintiff’s objection

under Rule 609.
55

Turning now to defendants’ hypothetical, should
plaintiff deny his status as a parolee or his conviction for the
underlying offense, he opens the door to extrinsic evidence by
defendants, e.g. Exhibits K and W, to directly rebut that
testimony, subject to Rule 403.
1250.

See Benedetto, 571 F.2d at

However, Rule 403 would prevent defendants from

introducing the mass of documents related to plaintiff’s
criminal conviction for the purposes of such rebuttal as mass
admission would be cumulative and risk unfair prejudice.
Hearsay
Plaintiff next objects, based on hearsay, to many of
the same investigative and criminal case documents, (Def. Exs.
A, C-E, G, L, V-X), in addition to the 911 dispatcher’s report,
(Def. Ex. B), Officer Hynes’ notes from plaintiff’s arrest,
(Def. Ex. I), a recording of the IAB’s interview of the
individual who called 911 in this case, (Def. Ex. N), and the
blood test of Officer Ruiz’s asp, (Def. Ex. P).

(Id. at 5-6.)

Defendants respond by pointing to their opposition to
plaintiff’s motion in limine where defendants argued that police
reports may be admitted as an exception to the rule against
hearsay as business records under Rule 803(6) or as public
records under Rule 803(8).

(Id. at 7.)

Alternatively,

defendants argue that, in general, when police reports are
offered to prove the speaker’s state of mind, and not the truth
56

of the statement, they are not hearsay.

(Id.)

In a footnote,

defendants argue that the creator of their offered police
report, Officer Hynes, imputed knowledge from his fellow
officers under the “fellow officer” rule or the “collective
knowledge” doctrine.

(Id. at 8 n.6.)

Defendants have not identified which exhibits they
intend to introduce and for what purpose.

However, the burden

to establish that evidence is inadmissible for any purpose, and
thus excludable on a motion in limine, is on the movant, United
States v. Pugh, 162 F. Supp. 3d 97, 101 (E.D.N.Y. 2016), and
plaintiff has not explained why defendants’ offered exhibits are
objectionable and why none of the hearsay exceptions apply.
Notwithstanding this shortcoming, the court has already granted
plaintiff’s motion in limine seeking to preclude as irrelevant
documents related to plaintiff’s arrest and prosecution that do
not shed light on the circumstances known to a reasonable
officer on the scene of plaintiff’s arrest.

For the same

reason, Exhibit N, the IAB interview of the 911 caller in this
case, is also irrelevant and defendants are precluded from
offering it into evidence.

As such, plaintiff’s hearsay

objection to those exhibits is moot.

However, defendants may

establish what hearsay exception, if any, applies to Exhibit P,
the test results for defendant Officer Ruiz’s asp, which the

57

court has already determined is relevant, and to Exhibit B, the
911 dispatcher’s report, which the court also finds is relevant.
Regarding defendants’ reliance on the “fellow officer”
rule, it is unclear how defendants intend to wield this doctrine
to demonstrate a defendant officer’s state of mind.

Defendants

state that Officer Hynes drafted his notes based, in part, on
“knowledge imputed from his fellow officers.”
n.6.)

(Def. Opp. at 8

However, Hynes’ state of mind, whether imputed from his

fellow officers or not, is not relevant unless it is
communicated to or known by the defendants at the time of
plaintiff’s arrest.

Such evidence, standing alone, is precluded

as irrelevant consistent with the court’s ruling on plaintiff’s
motion in limine regarding documents in his criminal case.
Thus, plaintiff’s hearsay objection to Officer Hynes’ notes is
moot, as well.

See II.A, supra.

Failure to Disclose
Finally, plaintiff objects to five of defendants’
exhibits that were not exchanged during discovery, specifically:
his recorded prison calls and associated transcripts, (Def. Ex.
Z); complaints he filed in the Southern District of New York,
(Def Exs. DD-FF); and any transcript of his sworn testimony,
(Def. Ex. KK).

Ostensibly, plaintiff objects under Federal Rule

of Civil Procedure 37 which permits preclusion of discoverable
materials that were not properly disclosed.
58

Fed. R. Civ. P.

37(c)(1); see also Patterson, 440 F.3d at 117.

Defendants

respond that these exhibits are impeachment evidence not subject
to disclosure under Federal Rule of Civil Procedure 26.
Resp. at 11-12.)

(Def.

Further, defendants argue that the exhibits at

issue are of the sort not exclusively within defendants’
control—plaintiff drafted the publicly available complaints
through counsel and was party to the recorded phone calls.
at 12.)

(Id.

Moreover, defendants disavow any plan to use

plaintiff’s recorded prison calls in their defense case and
apparently intend to introduce the calls only for impeachment
purposes.
As such, the court overrules plaintiff’s objection to
Exhibits Z, DD through FF, and KK because impeachment evidence
need not be disclosed during discovery.

See Fed. R. Civ. P

26(a)(3)(A) (“[A] party must provide to the other parties and
promptly file . . . information about the evidence that it may
present at trial other than solely for impeachment[.]”).
CONCLUSION
For the foregoing reasons the court grants in part and
denies in part the parties’ motions in limine.

In sum, the

court hereby:

A. GRANTS: Defendants’ motion to preclude plaintiff from:
(1) arguing or mentioning claims brought against
59

previously dismissed defendants, damages attributable
to the same, and arguing that he was not resisting
arrest; (2) introducing evidence from the CCRB
investigation; (3) introducing or inquiring into
unrelated related lawsuits against defendants and
unsubstantiated conduct from defendants’ disciplinary
histories; (4) personally testifying as to the cause
of his injuries; (5) introducing evidence of injuries
Officer LaSala sustained during the March 1, 2015
arrest; (6) arguing defendants could have employed
lesser force or alternatives to arrest plaintiff; (7)
mentioning police officer misconduct in general; and
(8) suggesting to the jury a dollar amount for a
damages award.
The court also grants plaintiff’s motion to
preclude defendants from introducing: (1) irrelevant
evidence from NYPD’s investigation into plaintiff’s
arrest and the resulting prosecution; (2) evidence of
plaintiff’s employment status and prior unrelated
conduct; (3) testimony from Captain Edmonds and
Officer Hynes, subject to a proffer as to the
relevance of both; and (4) testimony from Officer
Michaud.

60

B. DENIES: Defendants’ motion for an instruction that
plaintiff’s arrest was lawful without prejudice to
renew at the charging conference, and to preclude
plaintiff from introducing excerpts of the NYPD Patrol
Guide.
The court also denies plaintiff’s motion to
preclude defendants from introducing: (1) testimony
from defendants’ witness, Dr. Friedman; (2)
plaintiff’s complaints and discovery responses; and
(3) testimony by officer witnesses as to the existence
of probable cause at the time of plaintiff’s arrest.

C. DENIES AS MOOT: Plaintiff’s motion: to admit
photographs of plaintiff; to preclude evidence of
remarks by attorneys during depositions; and to
preclude argument regarding the parties’ in limine
motion practice. 4

D. SUSTAINS:

Defendants’ objection as to plaintiff’s

introduction of: (1) unauthenticated medical records
from Greene Correctional Facility and Medialliance
Medical Health Services; (2) a medical examination
The parties have resolved by stipulation defendants’ motions regarding
indemnification of defendants by the City of New York, and reference to
defense counsel as “City Attorneys.”

4

61

from plaintiff’s CDL application; and (3) documents
from the IAB’s investigation into plaintiff’s March 1,
2015 arrest. 5
The court also sustains plaintiff’s objections
under Rule 608 and 609 as to Exhibits A, C, B, D, E,
G, K, L, S, V, W, and X.

E. OVERRULES: Plaintiff’s objection under Rules 402 and
403 as to Exhibits P, BB, CC, DD, EE, FF, and KK;
plaintiff’s objection under Rules 608 and 609 to
Exhibit KK; and plaintiff’s objection under Federal
Rule of Civil Procedure 37 as to Exhibits Z, DD, EE,
FF, and KK.

F. RESERVES: The court will permit defendants to offer
proof at the Final Pretrial Conference as to exhibits
that remain in dispute after this order—those that
bear on the circumstances known to a reasonable
officer on the scene at the time of plaintiff’s
arrest—and excerpts from the NYPD Patrol Guide.

The

court will then make its decision under Rules 402 and

Defendants’ objections as to the CCRB investigation files, defendants’
disciplinary histories, and Dr. Guy’s report are moot.

5

62

403, and rule on any applicable hearsay objections.

This order is without prejudice and with leave to
renew consistent with this opinion.

Prior to the Final Pretrial

Conference, the parties must confer to attempt to resolve their
remaining evidentiary disputes and shall come prepared to offer
proof as to those exhibits only.
SO ORDERED.
Dated: January 8, 2019
Brooklyn, New York
_________/s/ _______
HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

63