Scoma v. City of New York et al

Filing 129

ORDER granting in part and denying in part 96 , 97 Motions in Limine. For the reasons set forth in the attached Memorandum and Order, the court grants in part and denies in part the parties' motions in limine. The court also rules on the part ies' respective objections to the trial exhibits, but reserves decision for the Final Pretrial Conference and trial as to some of the objections. Prior to the Final Pretrial Conference, the parties must confer to attempt to resolve their remaini ng evidentiary disputes and shall come prepared to offer proof as to those disputed exhibits. The parties are reminded to bring their final trial exhibit binders to the Final Pretrial Conference. The court reiterates its recommendation that the parti es attempt to resolve the case before noon on May 7, 2021. The court further grants defendants' 99 Motion for Leave to File, with plaintiff's consent. The court denies defendants' 123 Motion to Strike a portion of plaintiff 's reply brief. The court does not condone plaintiff's failure to adhere to the court's motion practices, but the court did not rely on the plaintiff's excessive pages in the reply brief in reaching its decision. Ordered by Judge Kiyo A. Matsumoto on 5/4/2021. (Tran, Alexander)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JOHN SCOMA
Plaintiff,

MEMORANDUM AND ORDER
16-CV-6693 (KAM)(SJB)

-againstCITY OF NEW YORK, et al,
Defendants.
----------------------------------X

KIYO A. MATSUMOTO, United States District Judge:
Plaintiff John Scoma brought this action under 42
U.S.C. § 1983.

In his second amended complaint, plaintiff

alleged eighteen claims, alleging that defendant police officers
(together with defendant the City of New York, “defendants”)
violated his constitutional rights, through the use of excessive
force to arrest him on September 19, 2015.
Second Amended Complaint.)
10, 2021.

(See ECF No. 44,

Trial is scheduled to begin on May

(See ECF No. 95, Amended Pretrial Scheduling Order.)

By memorandum and order dated January 22, 2021, the court
granted partial summary judgment to defendants regarding the use
of excessive force as to Officer Francisco Allende’s use of a
taser, the municipal liability claim, state assault and battery
claims regarding Officer Allende’s use of a taser, and
plaintiff’s state constitutional claims.

See Scoma v. City of

New York, No. 16-cv-6693 (KAM) (SJB), 2021 WL 230295 (E.D.N.Y.

Jan. 22, 2021).

The remaining claims for excessive force under

§ 1983 and state assault and battery relate to the officers’
application of handcuffs and their conduct immediately after the
handcuffs were applied.

Plaintiff has not identified the

officers involved in his remaining excessive force claims, other
than Officer Matthew Brander.

The court assumes the parties’

familiarity with the underlying facts of the instant case.
Pending before the court are the parties’ respective
motions in limine to preclude certain evidence from being
admitted at trial.

(See ECF No. 96, Defendants’ Memorandum in

Support of Motion in Limine (“Def. Mem.”); ECF No. 100,
Plaintiff’s Opposition (“Pl. Opp.”); ECF No. 98, Plaintiff’s
Memorandum in Support of Motion in Limine (“Pl. Mem.”); ECF No.
101, Defendants’ Opposition (“Def. Opp.”); ECF No. 119,
Defendants’ Notice of Objections (“Def. Obj.”).)

For the

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

The court also rules on the parties’ respective

objections to the trial exhibits below, but reserves decision
for the Final Pretrial Conference and trial as to some of the
objections.
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
2

that are definitely set for trial, without lengthy argument at,
or interruption of, the trial.’”
136, 141 (2d Cir. 1996).

Palmieri v. Defaria, 88 F.3d

“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 (the “Rules”).

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
3

determination of the action more probable or less probable than
it would be without 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)).
I.

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
force by the police 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

4

officer on the scene . . . at the moment’ the force is used.”
Rogoz, 796 F.3d at 246-47 (quoting Graham, 490 U.S. at 396).
II.

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
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”).

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 probative-prejudice 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 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,
5

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
The operative claims in this case have been
substantially narrowed following this court’s decision granting
in part and denying in part defendants’ motion for summary
judgment.

See Scoma v. City of New York, No. 16-cv-6693 (KAM)

(SJB), 2021 WL 230295 (E.D.N.Y. Jan. 22, 2021).

Plaintiff

voluntarily dismissed several other claims originally pled in
the second amended complaint.

(See ECF No. 75.)

Accordingly,

as confirmed by the parties at a May 3, 2021 status conference,
all that remains to be tried is plaintiff’s claim that excessive
force was used in the moments after plaintiff was tased and as
he moved or was moved from the interior stairwell to be
handcuffed on September 19, 2015.
Plaintiff’s Motions:
In the instant motions, plaintiff moves to preclude
defendants from introducing: (i) evidence or testimony regarding
information made known to police before defendant Brander used
the allegedly excessive force; (ii) testimony by Officers
Fernando Caches, Argely Delacruz, Francisco Allende, as well as
plaintiff’s neighbor Christina Cosares as prejudicial and
6

irrelevant; (iii) evidence or testimony regarding prior lawsuits
brought by plaintiff; (iv) evidence related to certain medical
records unrelated to plaintiff’s left elbow; (v) certain
evidence concerning plaintiff’s physique, workout regimen, and
medical steroid use; (vi) evidence of plaintiff’s prior arrest
and conviction history; and (vii) pleadings and other litigation
documents filed by plaintiff in this action.

(See generally Pl.

Mem.)
Defendants’ Motions:
Defendants move to preclude: (i) evidence of
disciplinary histories and prior lawsuits against defendant
officers; (ii) suggestions by plaintiff to the jury for a
specific dollar amount to be awarded as damages; (iii) any
charge to the jury regarding punitive damages; (v) evidence
relating to the employment or indemnification of the defendant
officers by New York City, including references to defense
counsel as “City attorneys.”

(See generally Def. Mem.)

Trial Exhibits:
Plaintiff objects to the admission of some of
defendants’ exhibits under the Federal Rules of Evidence, and to
documentary evidence from plaintiff’s prior civil actions and
the litigation documents in this case.

Defendants oppose the

introduction of certain medical records due to a lack of proper
foundation and authentication.

(See ECF No. 119, Def. Obj.)
7

The court now addresses the parties’ motions in limine and
objections in turn.
I.

Voluntary Dismissal of Certain Named Defendants
As an initial matter, the court will address

plaintiff’s request to voluntarily dismiss several named
defendants.

Plaintiff initially sought to dismiss his claims

against defendants Azeem Chatha, Fernando Caches, Damir Vukic,
Argely Delacruz, Francisco Allende, Spencer Craven, and Gregory
Mannino pursuant to Federal Rule of Civil Procedure 41(a)(2)
without prejudice.

(Pl. Mem. at 2-3.)

Defendants agree that

certain officers should be dismissed, but argue that any
dismissal should be with prejudice because it would be
inherently unjust for plaintiff to dismiss claims against the
named defendants without prejudice, on the eve of trial after
five years of litigation, and avoid any judgment on the merits.
(Def. Opp. at 1-3.)
Absent a stipulation joined by all parties, Fed. R.
Civ. P. 41(a)(1)(ii), a federal action may be voluntary
dismissed by plaintiff after an answer has been filed only “upon
order of the court and upon such terms and conditions as the
court deems proper.”

Fed. R. Civ. P. 41(a)(2).

“Unless

otherwise specified in the order, [such] a dismissal ... is
without prejudice,” id., but permission to dismiss an action
under this rule “may be conditioned upon the plaintiff
8

fulfilling whatever terms and conditions the district court, in
its discretion, deems necessary to offset the possible prejudice
that the defendant may otherwise suffer from the plaintiff
dismissing his complaint without prejudice, Shady Recs., Inc. v.
Source Enterprises, Inc., 371 F. Supp. 2d 394, 396 (S.D.N.Y.
2005), including a requirement that the dismissal be with
prejudice.

See Gravatt v. Columbia Univ., 845 F.2d 54, 56 (2d

Cir.1988) (district court may convert voluntary dismissal
without prejudice to one with prejudice, provided plaintiff is
given a subsequent opportunity to withdraw motion).
Here, the court agrees that it would be manifestly
unjust for plaintiff to dismiss certain named defendants without
prejudice on the eve of trial after five years of lengthy
litigation.

“To permit the plaintiff to discontinue the case at

this late stage, and then to reinstate the same action whenever
it felt like it in the future, would authorize intolerable
manipulation of the Court’s calendar and the defendants’
resources.”

Shady Recs., Inc., 371 F. Supp. 2d at 396.

Accordingly, as the court advised the parties at a status
conference on May 3, 2021, any dismissal of claims against the
defendant officers at this time will only be permitted if the
dismissal is with prejudice.

See id. (granting motion to

dismiss pursuant to Rule 41(a)(2) and determining dismissal
should be with prejudice where the case was trial ready).
9

Plaintiff has stated his intention to dismiss defendants Azeem
Chatha, Fernando Caches, Damir Vukic, Argely Delacruz, Francisco
Allende, Spencer Craven, and Gregory Mannino with prejudice (see
ECF No. 127), and the court orders that those defendants are
dismissed with prejudice.

See Gravatt, 845 F.2d at 56 (“[A]n

opportunity to withdraw a motion for dismissal without prejudice
must be afforded a plaintiff before the dismissal is converted
to one with prejudice”).
II.

Plaintiff’s Motions in Limine
A. References to “Pre-Tasing” Information
Plaintiff seeks to preclude evidence or testimony

regarding information made known to police before defendant
Brander used the allegedly excessive force (referred to
hereafter as the “pre-tasing” information).

(Pl. Mem. at 3-9.)

Specifically, plaintiff identifies the following categories of
testimony and documents as purportedly “both irrelevant an
prejudicial”: any information or observations allegedly learned
from Christina Cosares, any information or observations relating
to Brielle Scoma, any testimony regarding any purported fighting
or yelling heard from plaintiff’s home by the initial responding
officers, the event chronology offered by defendants (see ECF
No. 118, Defendants’ Exhibit List, Ex. B), any information or
events preceding defendant Brander’s arrival to the scene.
Mem. at 7-8.)

(Pl.

Defendants oppose plaintiff’s motion to preclude
10

the pre-tasing information known to the officers, countering
that such evidence remains relevant to the jury’s evaluation of
defendants’ use of force under the Fourth Amendment of the
Constitution.

(Def. Mem. at 3-8; Def. Opp. at 3-5.)

As discussed above and in this court’s prior decision
granting in part and denying in part defendants’ motion for
summary judgment, “claims that law enforcement officers have
used excessive force . . . in the course of an arrest,
investigatory stop, or other seizure of a free citizen should be
analyzed under the Fourth Amendment and its reasonableness
standard.”

Ketcham v. City of Mount Vernon, 992 F.3d 144, 148

(2d Cir. 2021) (citing Graham v. Connor, 490 U.S. 386, 395
(1989)).

The reasonableness of the force used “requires careful

attention to the facts and circumstances of each particular
case, including (1) the severity of the crime at issue, (2)
whether the suspect poses an immediate threat to the safety of
the officers or others, and (3) whether [the suspect] is
actively resisting arrest or attempting to evade arrest by
flight.”

Id. at 148-49.

This standard focuses on “‘a

reasonable officer on the scene, rather than with the 20/20
vision of hindsight.’”

Brown v. City of New York, 798 F.3d 94,

100 (2d Cir. 2015) (quoting Graham, 490 U.S. at 397).

Thus,

“[a] court’s role in considering excessive force claims is to
determine whether a jury, instructed as to the relevant factors,
11

could reasonably find that the force used was excessive.”

Id.

at 103.
Applying these factors here, the court agrees with
defendants that the pre-tasing information plaintiff seeks to
preclude is directly relevant to the jury’s evaluation of
defendant Brander’s alleged use of excessive force when
restraining plaintiff on September 19, 2015.

As summarized in

this court’s summary judgment decision, the undisputed facts of
this case indicate that, based on the pre-tasing information
described above, “a reasonable officer could conclude that
plaintiff, who refused to comply with the Officers’ directions
after reportedly assaulting his wife, was reasonably perceived
as an individual who had engaged in violence and posed a danger
not only to himself, but to the Officers and others in the
house.”

Scoma, 2021 WL 230295, at *8.

The pre-tasing

information was critically relevant to the court’s determination
that defendant Allende’s use of a taser (twice) was reasonable
under the circumstances and will again be relevant to the jury’s
determination as to whether defendant Brander’s use of force
immediately following the tasing was unconstitutional.
at *7-8.

See id.

Indeed, the first Graham factor expressly considers

the “nature and severity of the crime leading to the arrest,”
which necessarily requires some explanation regarding how and
why the defendant officers -- including defendant Brander -12

arrived at the scene of the reported crime, plaintiff’s home,
and what information the officers possessed at the time force
was used in tasing, arresting, and handcuffing plaintiff.
Graham, 490 U.S. at 396; see Amnesty Am. v. Town of W. Hartford,
361 F.3d 113, 123 (2d Cir. 2004) (“[T]he factfinder must
determine whether, in light of the totality of the circumstances
faced by the arresting officer, the amount of force used was
objectively reasonable at the time.”).
Thus, contrary to plaintiff’s contention that the
facts relevant to the jury’s analysis “should be limited to what
plaintiff allegedly did after being tased and before
handcuffing,” the court concludes that evidence of the pretasing information available to the officers, which includes
testimony from numerous officers and witnesses at the scene, is
relevant to the question of whether defendants used excessive
force after the tasing because it is the type of information
that a reasonable police officer would consider in determining
what appropriate action to take when faced with the
circumstances presented on September 19, 2015.

See Amnesty Am.,

361 F.3d at 124 (“In evaluating plaintiffs’ allegations, the
factfinder will have to judge the officers’ actions in light of
the situation as it appeared at the time.”).

Although some

events and information known to the officers occurred before
defendant Brander’s arrival at plaintiff’s home, the jury cannot
13

assess the reasonableness of defendant Brander’s response after
plaintiff was tased without some preliminary knowledge about the
events and circumstances leading to plaintiff’s arrest.
With respect to probable cause, the court has held
that defendant Allende was entitled to rely on information
learned from his fellow officers in determining that probable
cause existed to arrest plaintiff for an ongoing domestic
assault.

Similarly, in determining whether the use of force was

reasonable under the circumstances, the officers could rely on
the information learned from their fellow officers and on their
own observations at the scene.

See Scoma, 2021 WL 230295, at

*7; see also Cordero v. City of New York, 282 F. Supp. 3d 549,
561 (E.D.N.Y. 2017) (“The fellow officer rule, also known as the
collective knowledge doctrine, allows one officer to make an
arrest based on an instruction or information passed from one
officer to another.” (citing United States v. Hensley, 469 U.S.
221, 233 (1985))).

Defendant Brander testified that when he

arrived at plaintiff’s home, he learned from another officer
that plaintiff, who was resisting arrest, was inside the home
and had allegedly assaulted a female.
(citing Brander Dep. 34:2-35:16).)

(See Pl. Mem. at 5-6

Thus, under the same

reasoning discussed above, defendant Brander was entitled to
rely on the pre-tasing information learned from his fellow
officers in determining the appropriate action to take.
14

This

pre-tasing information necessarily included information conveyed
to the officers at the scene of the crime by Ms. Cosares and Ms.
Scoma before defendant Brander arrived, and, accordingly, is
relevant and admissible. 1

For these reasons, the court denies

plaintiff’s motion in limine to preclude all pre-tasing
information, including defendants’ trial exhibit B (the event
chronology).
B. “Unnecessary” Witnesses
Plaintiff moves to preclude certain “unnecessary
witnesses” that defendants intend to call, who may present
cumulative evidence regarding the events and circumstances
leading to plaintiff’s arrest.

(Pl. Mem. at 9-12.)

Specifically, plaintiff seeks to preclude defendants from
calling defendant Officers Fernando Caches, Argely Delacruz, and
Franciscon Allende, as well as plaintiff’s neighbor Christina
Cosares.

(Pl. Mem. at 9-12.)

Relying on Rule 403, plaintiff

argues that certain officers should be precluded because they
did not relay any information to defendant Brander, were outside
the plaintiff’s home at the time of the use of force, and would
unnecessarily waste the time of the court.

(Id. at 9-11.)

In

response, defendants counter that testimony from certain
officers are relevant in assessing plaintiff’s credibility and
The court agrees, however, that certain information not including the
pre-tasing information, such as plaintiff’s current relationship status with
Brielle Scoma is irrelevant and shall be excluded at trial.
1

15

also the reasonableness of force used by the defendants.
Opp. at 9-13.)

(Def.

Defendants also agree, however, that should

plaintiffs dismiss certain defendants, those defendants’
testimony may be unnecessary.

(Id.)

As an initial matter, plaintiff has agreed to dismiss
with prejudice his claims against defendants Officers Azeem
Chatha, Fernando Caches, Damir Vukic, Argely Delacruz, Francisco
Allende, Spencer Craven, and Gregory Mannino pursuant to Federal
Rule of Civil Procedure 41(a)(2).

(See ECF No. 127.)

As

discussed above, see supra Discussion I, because plaintiff
agreed to dismiss these defendants with prejudice, the court
agrees that defendants should carefully consider whether any
testimony from the dismissed officers is necessary or cumulative
to defendants’ theory of the case and not unfairly prejudicial
to plaintiff.

To the extent possible, the parties are

encouraged to stipulate to any facts derived from or relating to
the dismissed defendant officers.
With respect to plaintiff’s remaining objections to
testimony from Officers Fernando Caches, Argely Delacruz, and
Francisco Allende, the court denies plaintiff’s motion to
preclude these officers in toto.

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.”
16

Fed. R. Evid. 403.

“[E]vidence that bears on the objective reasonableness of the
officers’ conduct is relevant to the excessive force claim.”
Jean-Laurent, 840 F. Supp. 2d at 537.
Here, the evidence that plaintiff seeks to preclude is
directly relevant to the issue of whether defendants acted
reasonably, and excluding it would unduly prejudice defendants’
ability to defend against plaintiff's excessive force claim.
Although introduction of the evidence may undermine plaintiff’s
claim, nothing in the record supports plaintiff’s argument that
such evidence amounts to “unfair prejudice” within the meaning
of Rule 403.

See Fed. R. Evid. 403; see also United States v.

Diaz, 878 F.2d 608, 615 (2d Cir. 1989) (“Unfair prejudice within
[Rule 403’s] context means an undue tendency to suggest decision
on an improper basis, commonly, though not necessarily, an
emotional one. . . . The logical inferences resulting from
proffered evidence do not engender the unfair prejudice against
which Rule 403 is directed.” (cleaned up)).
Plaintiff seeks to preclude Officer Caches’s testimony
because Officer Caches testified to not having relayed any
information to defendant Brander.

(Pl. Mem. at 9-10.)

Nevertheless, as discussed above, the jury cannot assess the
reasonableness of defendant Brander’s response after the tasing
without some preliminary knowledge about the events and
circumstances leading to plaintiff’s arrest and the use of
17

force.

Thus, the officers’ interactions with Ms. Cosares and

Ms. Scoma before defendant Brander arrived were ultimately
relayed to defendant Brander -- even if not directly by Officer
Caches -- when defendant Brander was informed by an officer that
a “male [was] inside the place had choked and assaulted a female
who was outside and that he was refusing to be arrested and
wouldn’t come out of the house.”
Dep. 34:2-35:16).)

(Pl. Mem. at 5 (citing Brander

Plaintiff’s statements made to Officer

Caches in the ambulance, including plaintiff’s alleged reference
to a potential lawsuit, are relevant to plaintiff’s frame of
mind and his ongoing resistance to arrest.

The admissibility of

plaintiff’s other lawsuits is discussed infra Discussion II.C.
Similarly, the court declines to preclude testimony by
Officer Delacruz, who was outside the plaintiff’s home with
plaintiff’s wife, because, as noted above, the officers’
impressions of the pre-tasing information was necessarily
relevant to analyzing whether defendant Brander’s actions were
unconstitutional.

Plaintiff argues that because Officer

Delacruz was outside the home at the time the excessive force
was used, Delacruz can offer no relevant testimony regarding the
use of force.

(Pl. Mem. at 10.)

Moreover, plaintiff seeks to

preclude any interactions or conversations Officer Delacruz had
with Ms. Scoma or Ms. Cosares.

(Id. at 11.)

As noted above,

however, the substance of the conversations with Ms. Scoma or
18

Ms. Cosares were ultimately relayed to defendant Brander through
another officer and therefore are relevant to the jury’s
analysis of plaintiff’s arrest, his perceived resistance to
arrest, and the officers’ use of force, and will not be
excluded.

See United States v. Herron, 18 F. Supp. 3d 214, 228

(E.D.N.Y. 2014) (“The collective knowledge doctrine allows for
the imputation of knowledge between officers when one officer,
having acquired probable cause, instructs another officer to
conduct a search or arrest, even if the latter is far less
informed.”); United States v. Babilonia, 854 F.3d 163, 178 (2d
Cir. 2017).
Finally, the court declines to preclude Officer
Allende’s testimony because, even though Officer Allende
testified to not seeing plaintiff being handcuffed, Officer
Allende’s actions in firing the taser are relevant to the jury’s
determination of whether defendant Brander thereafter used
excessive force in applying the handcuffs.

In other words,

Officer Allende’s testimony regarding the deployment of the
taser and the circumstances surrounding the incident are
relevant information that a jury should consider when assessing
the reasonableness of defendant Brander’s use of force in
restraining plaintiff.

Plaintiff’s alleged statement to Officer

Allende that plaintiff was “not going back to jail” is relevant
to plaintiff’s state of mind and motive in what the officers
19

perceived as plaintiff’s refusal to comply with their orders to
submit to handcuffs after he was advised that he was under
arrest.

The admission of plaintiff’s criminal history is

discussed below.

See infra Discussion II.F.

For these reasons,

the court denies plaintiff’s motion to preclude testimony from
Officers Caches, Delacruz, and Allende in toto and further
declines to preliminarily limit the contents of the officers’
testimony regarding the pre-tasing information.

Nonetheless,

the court agrees with plaintiff that defendants should not
present testimony or evidence that is unnecessarily cumulative
when describing the pre-tasing events.
C. Plaintiff's Prior Lawsuits and Related Exhibits
Plaintiff requests that “any evidence or testimony
regarding unrelated personal injury lawsuits brought by
plaintiff” be precluded from trial under Rule 402 or 403 because
any relevance is outweighed by significant risk of prejudice,
and the “only import” would be to demonstrate that plaintiff is
a “chronic litigant” or a criminal.

(Pl. Mem. at 12-14.)

Defendants counter that plaintiff’s prior lawsuits are
relevant in showing plaintiff’s “motive, plan and scheme” in
orchestrating a lawsuit against defendants for financial gain.
(Def. Opp. at 13.)

Specifically, defendants identify two cases

filed by plaintiff in 2002 and 2013 respectively, where
plaintiff sought monetary relief for personal injuries: (1)
20

Scoma v. United States, No. 02-cv-2970 (JG) (E.D.N.Y. 2002), and
(2) John Scoma v. Man-Dell Food Stores, Inc., 3250/2013 (Kings
Cty. Sup. Ct.).

Defendants assert that these two lawsuits are

“sufficiently similar to demonstrate a pattern, plan and scheme
by which plaintiff would intentionally place himself at risk of
relatively minor injuries” to “seek financial gain through
litigation.”

(Def. Opp. at 16-17.)

Rule 404(b)(1) prohibits the admission of evidence of
“a crime, wrong, or other act” to “prove a person’s character in
order to show that on a particular occasion the person acted in
accordance with the character.”

Fed. R. Evid. 404(b)(1).

Rule

404(b)(2), however, provides that such evidence “may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.”

Fed. R. Evid.

404(b)(2).
The Second Circuit has explained that “[l]itigiousness
is the sort of character trait with which Rule 404(b) is
concerned.”

Outley v. City of New York, 837 F.2d 587, 592 (2d

Cir. 1988) (“[A] plaintiff’s litigiousness may have some slight
probative value, but that value is outweighed by the substantial
danger of jury bias against the chronic litigant.”); see also
Raysor v. Port Authority of New York and New Jersey, 768 F.2d
34, 40 (2d Cir. 1985).

In similar circumstances, courts have
21

generally precluded evidence of prior lawsuits to show the
plaintiff’s litigiousness unless there was evidence that the
prior lawsuits were fraudulently filed.

See Outley, 837 F.2d at

594 (excluding evidence of prior lawsuits but noting a
distinction “where a party has filed a series of fraudulent
lawsuits and there is substantial evidence that the prior
lawsuits amounted to a fraudulent pattern”); Walker v. Schult,
365 F. Supp. 3d 266, 281 (N.D.N.Y. 2019) (excluding evidence of
prior grievances where defendants failed to show “other
grievances were fraudulent”); Elhannon LLC v. F.A. Bartlett Tree
Expert Co., No. 14-cv-262, 2018 WL 6040687, at *3 (D. Vt. Nov.
19, 2018) (excluding evidence of prior lawsuits into evidence
where the risk of prejudice was high and defendant failed to
show the prior suits were fraudulent).
Here, the court agrees with plaintiff that defendants
have failed to show that plaintiff’s prior lawsuit against the
United States was fraudulently filed or relevant to this instant
case.

In Scoma v. United States, No. 02-cv-2970 (JG)

(E.D.N.Y.), plaintiff sought damages for a leg injury he
allegedly sustained while playing basketball on the recreation
deck of the Metropolitan Detention Center (“MDC”) in Brooklyn,
New York.

This court granted summary judgment to the United

States and dismissed the case after concluding that plaintiff
assumed the risk of injury by engaging in athletic activity.
22

See Scoma, 2004 WL 40511, at *3-4 (E.D.N.Y. Jan. 7, 2004).
Although this prior action involved a personal injury, the
factual circumstances are sufficiently distinct from the instant
case that introducing this prior action may lead to jury
confusion or unfair prejudice against defendant as a chronic
litigant or criminal.

Further, although the court granted

summary judgment in favor of the government, the court did not
conclude that plaintiff’s lawsuit was fraudulent.
2004 WL 40511, at *3-4.

See Scoma,

Moreover, even if the court agreed with

defendants that plaintiff’s prior lawsuit may show some motive
or intent, the “slight probative value” is “outweighed by the
substantial danger of jury bias against the chronic litigant.”
Outley, 837 F.2d at 592; Marcic v. Reinauer Transp. Companies,
397 F.3d 120, 125 (2d Cir. 2005) (“A trial court has a duty to
prevent charges of litigiousness if they are likely to result in
undue prejudice that is not substantially outweighed by their
probative value.”); see, e.g., Ragin v. Newburgh Enlarged City
Sch. Dist., No. 10-cv-2797 (JFK), 2011 WL 2183175, at *2
(S.D.N.Y. June 3, 2011) (“The introduction of evidence
concerning [plaintiff’s] past litigation would distract the jury
from the central issues in the trial and may well lead to
prejudice against [plaintiff] as a frequent litigant. We would
be getting too close to propensity evidence.”).

Accordingly,

“if defendants can prove that plaintiff has made similar claims
23

that were found to be fraudulent, they may cross-examine
[plaintiff] concerning these litigations in order to impeach his
credibility at trial.”

Young v. Calhoun, No. 85-cv-7584 (SWK),

1995 WL 169020, at *6 (S.D.N.Y. Apr. 10, 1995).

Because the

court cannot conclude that plaintiff’s prior lawsuit against the
United States was fraudulent, however, and due to the risk of
unfair prejudice against plaintiff, the court grants plaintiff’s
motion in limine to preclude admission of evidence regarding
Scoma v. United States, No. 02-cv-2970 (JG) (E.D.N.Y. 2002) at
the present time.
Next, plaintiff also seeks to preclude any evidence
involving plaintiff’s personal injury lawsuit filed February 13,
2013 against a grocery store.

In John Scoma v. Man-Dell Food

Stores, Inc., 3250/2013 (Kings Cty. Sup. Ct.) (the “Key Foods
lawsuit”), plaintiff brought suit after he tripped over an
obstacle that was allegedly placed on the floor by a Key Foods
Supermarket employee.
Ex. E, Complaint at 2.)

(See ECF No. 101-6, Scheiner Declaration,
Notably, in the Key Foods lawsuit,

plaintiff alleged that he sustained:
[S]erious, severe and permanent injuries,
including, among others, injury to the left
elbow; . . . torn tendons of the left elbow;
subluxation of the ulnar nerve in the left
elbow; suffered transposition flexor damage to
the left elbow; suffered nerve damage to the
left elbow . . . suffered damage to the u1nar
nerve of the left elbow; was forced to undergo
debridement of the flexor tendon of the left
24

elbow; suffered loss of range of motion in the
left elbow and arm; suffered scarring of the
left elbow; was forced to undergo painful and
extensive
physical
therapy;
suffered
derangement of the left elbow; suffered torn
ligaments
in
the
left
elbow.
Id. at 4.

Thus, plaintiff alleged that the injuries he

sustained in the Key Foods lawsuit were inflicted on the same
location of his body that is the focus of his injury in this
case -- his left elbow.

See Scoma, 2021 WL 230295, at *4 (“An

x-ray was taken of plaintiff’s left elbow and he was diagnosed
with a fracture to his ‘coronoid process proximal ulna’ and a
‘suspected fracture’ to his proximal radial head.”).

Moreover,

it is undisputed that due to injuries related to his Key Foods
lawsuit, plaintiff underwent two surgeries to repair his left
elbow in 2011 and again in 2015, just before the arrest at issue
in the instant action.

(See ECF No. 80-6, Scoma Deposition at

90:16-92:7.)
Accordingly, unlike plaintiff’s other federal lawsuit
regarding a leg injury sustained while playing basketball, the
Key Foods lawsuit is directly relevant and admissible because
the injuries and potential damages overlap in both cases.

The

court agrees with defendants that the jury should be entitled to
consider that plaintiff allegedly suffered an injury to his left
elbow from a prior incident and sought compensation for that
injury.

Indeed, at his deposition, plaintiff described the pain

25

he suffered while being handcuffed “[b]ecause [he] was just
recovering from a second surgery” to repair his elbow following
the Key Foods incident.

(Scoma Dep. at 69:20-25); Brewer v.

Jones, 222 F. App’x 69, 70 (2d Cir. 2007) (summary order)
(“[E]vidence relevant to show a possible cause of [a
plaintiff’s] injury unrelated to the acts of the defendant,” may
be admissible.)
Thus, the probative value of evidence from the Key
Foods lawsuit is not substantially outweighed by the risk of
unfair prejudice to plaintiff.

Moreover, the court concludes

that defendants shall also be permitted to introduce evidence of
testimony provided in the Key Foods lawsuit for impeachment
purposes.

See Jean-Laurent, 840 F. Supp. 2d at 543 (“To the

extent that plaintiff testifies at trial that he suffered
emotional damages as a result of the June 11, 2002 strip search,
defendants may introduce limited deposition testimony given by
plaintiff in [a previous lawsuit] as a prior inconsistent
statement as to causation under Federal Rule of Evidence
801(d)(1)(A).”).

In addition, the plaintiff’s deposition

testimony offered by defendants is admissible as a party
admission under Federal Rule of Evidence 801(d)(2)(A).
Accordingly, for the reasons set forth above, the
court grants in part and denies in part plaintiff’s motion in
limine to preclude the prior lawsuits.
26

Defendants are precluded

from referring to or offering evidence regarding Scoma v. United
States, No. 02-cv-2970 (JG) (E.D.N.Y.), but may refer to
relevant evidence and testimony regarding plaintiff’s Key Foods
lawsuit.
D. Plaintiff's Medical History
Plaintiff also moves to preclude the introduction of
testimony any medical evidence that are unrelated to plaintiff’s
left elbow.

(Pl. Mem. at 14-15.)

Defendants concede that,

assuming plaintiff’s claimed damages are limited to his left
elbow, evidence unrelated to plaintiff’s left elbow is not
relevant and will not be introduced.

(Def. Opp. at 19.)

To the

extent plaintiff’s damages are limited to his left elbow, the
court agrees that unrelated medical evidence is not relevant or
admissible, unless the claimed damages may be related to other
medical conditions.
E. Plaintiff's Facebook Photo, Workout Regimen, and
Medical Steroid Use
Plaintiff moves to preclude the introduction of
defendants’ trial Exhibit A, which is a photo of plaintiff from
Facebook, (see ECF No. 118, Defendants’ Exhibit List, Ex. A (the
“Facebook photo”)).

Plaintiff also seeks to preclude defendants

“from eliciting testimony regarding plaintiff’s workout regimen
or medically prescribed steroids.”

(Pl. Mem. at 15-16.)

Plaintiff argues that such evidence would only serve as a

27

distraction from plaintiff’s excessive force claim.

(Id.)

Defendants counter that such evidence is relevant and admissible
because plaintiff authenticated the Facebook photo at his
deposition and his workout regimen and medical steroid use are
relevant to his strength at the time of his incident and the
degree of his injuries.

(Def. Opp. at 20-21.)

As an initial matter, the court agrees that the
plaintiff’s Facebook photo is relevant and admissible because it
shows the plaintiff’s physique at the time of the incident and
was authenticated by plaintiff during his deposition.

In

relevant part, plaintiff confirmed the authenticity of the
Facebook photo when it was presented at his deposition:
Q:
[T]hese are photographs I downloaded from
your Facebook page. And I just wanted to ask
you . . . whether you think that that
photograph depicts you, on the way that you
would have appeared to the officers who were
in
the
house
during
the
incident
Q:
In other words, your physical shape; is
that the physique that you had on the date
of September 19th
A:

Approximately, yes.

(ECF No. 80-6, Scoma Deposition, 103:21-104:7.)

Thus, as

conceded by plaintiff, the Facebook photo shows his approximate
physique on September 19, 2015.

Accordingly, the photograph has

probative value because it is relevant to a reasonable officer’s
perspective when confronted with the circumstances at the time

28

of plaintiff’s arrest, see Graham, 490 U.S. at 397, and is not
substantially outweighed by unfair prejudice to the plaintiff.
For these reasons, plaintiff’s motion to preclude the Facebook
photo is denied.
With respect to plaintiff’s workout regimen and
medical steroid use at the time of his arrest, the court
concludes that such evidence has some probative value for the
reasons explained below.

Specifically, the court finds that in

analyzing the Graham factors, the Facebook photo will provide
the jury the opportunity to assess how a reasonable officer
might perceive and respond to the circumstances present on
September 19, 2015 -- specifically, how a reasonable officer
would evaluate the force necessary to effect an arrest of an
individual perceived to be of “large and muscular physical
stature,” who refuses to comply with the officers’ orders.
Scoma, 2021 WL 230295, at *8.
Whether to permit the jury to also consider
plaintiff’s workout regimen and medical steroid use -information unknown to the officers at the scene of the incident
-- raises considerations of a risk of unfair prejudice to
plaintiff.

See Fed. R. Evid. 403.

To be sure, defendants

represent that they intend to use the workout and steroid
evidence to show plaintiff’s “strength at the time of the
incident” and “his belligerence and aggressiveness when
29

confronting the police.”

(Def. Opp. at 21.)

The court finds

that plaintiff’s Facebook photo will permit the jury to
understand the officers’ assessment of plaintiff’s strength.
Relevant testimony from the officers and plaintiff will permit
the jury to make any necessary credibility determinations
regarding plaintiff’s demeanor.
The plaintiff’s workout regimen at the time of the
incident undergirding this case is precluded because officers
were unaware of it.

Evidence of plaintiff’s workout regimen and

work as a personal trainer after he was arrested is relevant to
the magnitude of his injuries and damages.

Evidence of

plaintiff’s use of steroids, a fact also unknown to the officers
at the time of his arrest, is relevant and admissible if: (1)
the medical records establish that plaintiff was taking
steroids; and (2) a treating or expert medical source testifies
to the effect of steroids on muscle mass and demeanor. 2

Evidence

of steroid use is relevant to the parties’ testimony about
plaintiff’s appearance and conduct on the date of his arrest.
For these reasons, the court grants in part and denies in part
plaintiff’s motion in limine, and rules that the Facebook photo

The court respectfully disagrees with defendants’ contention that a
jury would necessarily understand, without fact or expert medical testimony,
that steroid use enhances muscle mass and increases irritability and anger in
some users. The court agrees that it would be unfairly prejudicial to permit
defendants to present evidence of steroid use to the jury without fact or
expert medical testimony explaining the contents and meaning of plaintiff’s
medical records and the effects of steroids on persons with low testosterone.
2

30

is admissible, plaintiff’s workout regimen at the time of his
arrest is not admissible, his workout regimen after his arrest
is admissible as to damages, and plaintiff’s medical steroid use
is conditionally admissible.
F. Plaintiff’s Criminal History
Plaintiff also seeks to preclude evidence or testimony
relating to plaintiff's arrest and conviction history.
Mem. at 16-19.)

(Pl.

Plaintiff argues that such evidence, including

plaintiff's New York State Division of Criminal Justice Services
Rap Sheet (“rap sheet”) (see ECF No. 118, Defendants’ Exhibit
List, Ex. D), is irrelevant, not admissible, and constitutes
improper character evidence under Rule 404.

(Id.)

Moreover,

plaintiff seeks to preclude defendants from introducing
testimony that plaintiff was discharged from the United States
Marine Corps in 1989 with a less than honorable discharge.

(Id.

at 18-19.)
In response, defendants represent that they do not
intend to elicit any evidence regarding plaintiff’s military
discharge or any arrests that did not lead to conviction, other
than the arrest in this case to the extent that it is relevant
to the use of force.

(Def. Opp. at 22.)

Nonetheless,

defendants argue that plaintiff’s October 20, 2000 racketeering
conviction should be admitted because the conduct is “highly

31

relevant to the plaintiff’s veracity” and not unfairly
prejudicial.

(Id. at 23-24.)

As defendants represent that they do not intend to
introduce evidence of plaintiff’s prior arrests, convictions,
and discharge from the military, the court grants plaintiff’s
motion in limine to preclude the rap sheet and any evidence or
testimony related to plaintiff’s criminal history as described
above.

The court further grants plaintiff’s motion to preclude

his racketeering conviction for the following reasons.
On or about October 10, 2000, plaintiff was convicted,
upon a guilty plea, of one count of racketeering in violation of
18 U.S.C. § 1962(c), and sentenced to 15 months’ imprisonment.
See Scoma v. United States, No. 02-cv-2970 (JG), 2004 WL 40511,
at *2, 15 n.1 (E.D.N.Y. Jan. 7, 2004).

At his deposition,

plaintiff testified that the substance of this crime was two
bank burglaries, allegedly occurring in the context of organized
crime.

(See ECF No. 101-9, Scoma Deposition, 119:1-122:15.)

Because plaintiff’s October 20, 2000 racketeering conviction
occurred more than ten years ago, Rule 609(b) applies.
Under Rule 609(b), a felony conviction that is more
than ten years old is admissible only if “its probative value,
supported by specific facts and circumstances, substantially
outweighs its prejudicial effect.”

Fed. R. Evid. 609(b)(1).

In

such circumstances, “[e]vidence of the conviction is admissible
32

only if: (1) its probative value, supported by specific facts
and circumstances, substantially outweighs its prejudicial
effect; and (2) the proponent gives an adverse party reasonable
written notice of the intent to use it so that the party has a
fair opportunity to contest its use.”

Id.

When balancing the

probative value of a conviction against its prejudicial effect,
courts will examine four factors: “(1) the impeachment value of
the prior crime, (2) the remoteness of the prior conviction, (3)
the similarity between the past crime and the conduct at issue,
and (4) the importance of the credibility of the witness.”
Daniels v. Loizzo, 986 F. Supp. 245, 450 (S.D.N.Y. 1997) (citing
4 Weinstein’s Fed. Evid. § 609.04[2][a], at 609-20 (1997);
United States v. Hayes, 553 F.2d 824, 828 (2d Cir. 1997)).

In

reviewing the admission of convictions under Rule 609(b), the
Second Circuit requires “the district judge [to] make an on-therecord finding based on specific facts and circumstances that
the probative value of the evidence substantially outweighs the
danger of unfair prejudice.”

Jones v. New York City Health &

Hosps. Corp., 102 F. App’x 223, 226 (2d Cir. 2004) (summary
order) (citing United States v. Mahler, 579 F.2d 730, 734 (2d
Cir. 1978)).
Having reviewed the record, the court does not find
that the probative value of plaintiff’s racketeering conviction
“substantially outweighs” the prejudicial effect of admitting
33

such stale conviction.

See Fed. R. Evid. 609(b).

The Second

Circuit has recognized that Congress intended that convictions
more than ten years old be admitted ‘very rarely and only in
exceptional circumstances.’”

Daniels, 985 F.Supp. at 252

(quoting Zinman v. Black & Decker, Inc., 983 F.2d 431, 434 (2d
Cir.1993)).

No such “exceptional circumstances” are present

here to justify the admission of plaintiff’s 2000 racketeering
conviction over twenty years ago.

See, e.g., Dougherty v. Cty.

of Suffolk, No. 13-cv-6493 (AKT), 2018 WL 1902336, at *3
(E.D.N.Y. Apr. 20, 2018) (concluding that plaintiff’s felony
burglary conviction did not

present “exceptional circumstances”

warranting its admission); Maize v. Nassau Health Care Corp.,
No. 05—cv-4920 ETB, 2012 WL 139261, at *4 (E.D.N.Y. Jan. 18,
2012) (same).

For these reasons, the court grants plaintiff’s

motion in limine to preclude evidence and testimony relating to
plaintiff’s criminal history, prior arrests, and military
discharge.

If plaintiff opens the door to this evidence, for

example by denying his criminal conviction or mentioning his
military service, defendants may impeach plaintiff with evidence
of his criminal convictions and dishonorable discharge.
G. Pleadings and Discovery Responses
Plaintiff next moves to preclude defendants from
introducing the pleadings and discovery responses in this case
as potentially prejudicial.

(Pl. Mem. at 19 (citing to
34

defendants’ exhibits W, X, Y, Z, and BB).)

Defendants respond

that they do not intend to introduce “these documents in toto,
or for any purpose other than as needed to impeach plaintiff if
necessary.”

Defendants further note that certain pleadings and

responses are sworn statements and are considered judicial
admissions against a party and are further admissible as prior
statements of a party.

(Def. Opp. at 24-25.)

Although plaintiff’s complaints are not sworn
documents, the court agrees with defendants that plaintiff’s
pleadings are admissible for impeachment purposes and as party
admissions, and are 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
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.”

Bermudez v. City of New York, No. 15-cv-

3240 (KAM)(RLM), 2019 WL 136633, at *16 (E.D.N.Y. Jan. 8, 2019).
Accordingly, plaintiff’s motion to preclude his pleadings and
discovery responses is denied and the court will allow
defendants to use such evidence as admissions and for
impeachment purposes.
35

III.

Defendants’ Motions in Limine
A. Defendants’ Disciplinary History and Prior Lawsuits
Defendants 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 8-11.)

Defendants did not cite to

any specific disciplinary history or prior lawsuits and instead
made this motion “in an abundance of caution should plaintiff
attempt to elicit such matters.”

(Id. at 9 n.1.)

In response,

plaintiff represents that he “does not intend to introduce any
such evidence” regarding the prior lawsuits or disciplinary
history.

(See Pl. Opp. at 1 n.1.)

Based on the foregoing, the

court denies as moot defendants’ motion to preclude any
disciplinary history or prior lawsuits.
B. Specific Damages Award
Next, 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 11-12.)

Plaintiff opposes this

motion, requesting that the court permit him to request the jury
award a specific dollar amount “as a matter of trial strategy.”
(Pl. Opp. at 4.)
As plaintiff correctly notes, the determination of
whether to allow a plaintiff to request a specific damages
36

amount from the jury is within the court’s discretion.

See

Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir.
1997).

Although the Second Circuit has stated in the context of

monetary awards for pain and suffering that “specifying target
amounts for the jury to award is disfavored,” Consorti v.
Armstrong World Industries, Inc., 72 F.3d 1003, 1016 (2d Cir.
1995), vacated on other grounds, 518 U.S. 1031 (1996), the
Second Circuit has also stated that “it is best left to the
discretion of the trial judge, who may either prohibit counsel
from mentioning specific figures or impose reasonable
limitations, including cautionary jury instructions.”
Lightfoot, 110 F.3d at 912 (The court may, in its discretion,
“either prohibit counsel from mentioning specific figures or
impose reasonable limitations, including cautionary jury
instructions.”)
In light of the Second Circuit’s guidance, the court
will not permit plaintiff to submit to the jury a specific
dollar amount regarding his non-economic damages, including pain
and suffering, in either his opening statement, witness
testimony, or closing argument.

See, e.g., Equal Emp.

Opportunity Comm'n v. United Health Programs of Am., Inc., No.
14-CV-3673 (KAM)(JO), 2017 WL 10088567, at *13 (E.D.N.Y. Sept.
4, 2017) (precluding plaintiffs from suggesting or requesting at
trial a specific dollar amount regarding their noneconomic
37

damages); Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 558
(E.D.N.Y. 2011) (precluding plaintiff’s counsel from submitting
a specific dollar amount regarding damages for pain and
suffering, but permitting plaintiff’s counsel to submit a dollar
amount regarding other compensable damages if supported with
admissible evidence during case in chief).
Plaintiff will be permitted, however, to submit to the
jury during his closing argument a specific dollar amount
regarding other compensable damages he alleges to have suffered
as a result of the defendants’ actions, so long as any figure
submitted to the jury is supported by the trial evidence
admitted during plaintiff’s case in chief and defendants have an
opportunity to respond if they choose to do so.

See Greenburger

v. Roundtree, No. 17-cv-03295 (PGG)(SLC), 2020 WL 6561598, at *3
(S.D.N.Y. Jan. 16, 2020) (“A plaintiff bears the burden of
establishing its entitlement to recovery and thus must
substantiate its claim with evidence to prove the extent of
damages.” (cleaned up)), report and recommendation adopted, 2020
WL 4746460 (S.D.N.Y. Aug. 16, 2020).

The court will instruct

the jury that statements by lawyers are not evidence or the law
that they are to follow when they begin their deliberations.
For the foregoing reasons, defendants’ motion in limine to
preclude plaintiff from suggesting a specific dollar amount to
the jury is granted in part and denied in part.
38

C. Jury Instructions Regarding Punitive Damages
Defendants seek to preclude the court from charging
the jury with an instruction concerning punitive damages.
Mem. at 12.)

(Def.

Defendants assert that punitive damages are

inappropriate because “there is no evidence of evil intentions,
or reckless or callous indifference” by defendants.

(Id.)

Plaintiff argues that a punitive damages award is warranted in
this case and that it should be left to the jury to decide
whether defendant Brander’s use of force warrants punitive
damages.

(Pl. Opp. at 5-6.)
“Punitive damages are available in an action under

[section] 1983 when the defendant's conduct is shown to be
motivated by evil motive or intent, or when it involves reckless
or callous indifference to the federally protected rights of
others.’”

Haskins v. Jackson, No. 15-cv-2016 (MKB), 2020 WL

6705640, at *17 (E.D.N.Y. Nov. 10, 2020) (quoting Smith v. Wade,
461 U.S. 30, 56 (1983)).

A jury may appropriately award

punitive damages where the “character of the tortfeasor’s
conduct . . . is of the sort that calls for deterrence and
punishment over and above that provided by compensatory awards.”
Wade, 461 U.S. at 54.

A plaintiff must show a “positive element

of conscious wrongdoing” by the defendant.

New Windsor

Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 121 (2d
Cir. 2006) (quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526,
39

538 (1999)).

“Generally, the issue of whether defendants’

conduct is sufficiently serious to warrant punitive damages is a
question best left to the jury.”
Supp. 3d 76, 108 (E.D.N.Y. 2015).

Lozada v. Weilminster, 92 F.
Nonetheless, “[i]t is a

question of law for the Court, not the jury, to decide whether a
plaintiff has established that punitive damages are available.”
Fairman v. Hurley, 373 F. Supp. 2d 227, 234 (W.D.N.Y. 2005)
(citing 15 Moore’s Federal Practice § 102.106[4]); Frittita v.
Fanny’s Supper Club, No. 98-cv-781S, 2000 WL 35905867, at *9
(W.D.N.Y. Aug. 8, 2000) (“questions on what evidence should be
admitted into or excluded from evidence, what [] evidence is
relevant to the issue of punitive damages, . . . are questions
of law, not questions of fact for the jury”).
District courts in this circuit have “allow[ed] the
jury to decide issues of liability and compensatory damages
first, and then present instructions regarding punitive damages,
if applicable.”

Villar v. City of New York, No. 09-cv-7400

(DAB), 2017 WL 4512507, at *6 (S.D.N.Y. Sept. 25, 2017); see
also Hannah v. Wal-Mart Stores, Inc., No. 12-cv-01361 (VAB),
2017 WL 690179, at *4 (D. Conn. Feb. 21, 2017), aff'd sub nom.,
803 F. App’x 417 (2d Cir. 2020).

As defendants’ argument

focuses on the “insufficiency of evidence in support of
Plaintiffs’ claim for punitive damages,” this court concludes
that it is inappropriate to make this determination before the
40

court has the opportunity to evaluate the trial evidence.
Hannah, 2017 WL 690179, at *4.

See

Thus, the court will reserve the

issue of whether to charge punitive damages until the parties
have rested.

Until that point, plaintiff’s counsel is to

refrain from mentioning punitive damages to the jury.
Accordingly, defendants’ motion to preclude the court from
charging the jury with an instruction concerning punitive
damages is denied without prejudice to renewal.
D. Plaintiff’s Medical Records
Defendants also object to plaintiff’s introduction of
medical records that are not authenticated, contain inadmissible
hearsay or irrelevant matter, and are not sufficiently explained
by a competent witness to make them intelligible to the jury.
(Def. Mem. at 13-14.)

Plaintiff contends that he may introduce

certified medical records without a custodian or medical witness
pursuant to Rule 803(6).

(Pl. Opp. at 6-7.)

Two exceptions under the Federal Rules of Evidence are
relevant when considering the introduction of medical records:
the exception for medical records, as expressed in Rule 803(4);
and the exception for records kept in the normal course of
business, as expressed in Rule 803(6).

Generally, medical

records “can be admissible under [Rule] 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
41

authenticated . . . Properly authenticated [s]tatement[s] that .
. . [are] made for—and [are] reasonably pertinent to—medical
diagnosis or treatment; and . . . describe [ ] medical history;
past or present symptoms or sensations; their inception; or
their general cause are also admissible under [Rule] 803(4).”
Norcia v. Dieber's Castle Tavern, Ltd., 980 F. Supp. 2d 492, 501
(S.D.N.Y. 2013) (internal citations and quotation marks
omitted).

Rule 803(4) permits introduction of a statement,

otherwise hearsay, that “(A) is made for—and is reasonably
pertinent to—medical diagnosis or treatment; and (B) describes
medical history; past or present symptoms or sensations; their
inception; or their general cause.”

Fed. R. Evid. 803(4).

To admit medical records under Rules 803(4) or 803(6),
however, “the introducing party must lay a foundation to
introduce hearsay evidence.”

Djangmah v. Falcione, No. 08-cv-

4027 (KPF), 2013 WL 6388364, at *6 (S.D.N.Y. Dec. 5, 2013)
(internal citations and quotation marks omitted).

In addition,

“Rule 803(6) explicitly requires that this foundation be laid by
a ‘custodian’ or ‘qualified witness,’ if testimonial, or by a
formal certification by the record’s custodian.”

Id.; see also

Perpall v. Pavetek Corp., No. 12-cv-0336 (PKC), 2017 WL 1155764,
at *8 (E.D.N.Y. Mar. 27, 2017) (“Courts in this Circuit have
generally held that medical records are admissible under the

42

business record exception to the hearsay rule, provided that
they satisfy the requirements of FRE 803(6).”).
With these principles in mind, the court finds that
plaintiff’s medical records will be admissible at trial, if he
lays the proper foundation for such evidence.

“As with Rule

803(4), the introducing party must lay a foundation to introduce
hearsay evidence under Rule 803(6); unlike Rule 803(4), however,
Rule 803(6) explicitly requires that this foundation be laid by
a ‘custodian’ or ‘qualified witness,’ if testimonial, or by a
formal certification by the record’s custodian.”

Duchnowskl v.

Cty. of Nassau, 416 F. Supp. 3d 179, 182-83 (E.D.N.Y. 2018);
see, e.g., Gissinger v. Yung, Nos. 04-cv-0534, 04-cv-5406, 2007
WL 2228153, at *4 (E.D.N.Y. July 31, 2007) (holding that “[i]f
properly authenticated and created in the regular course of
business contemporaneously with the occurrence by a person with
knowledge, medical records can be admissible as business
records”, and finding submission of affidavit from doctor who
created the medical records was proper authentication) (citing
Hodges v. Keane, 886 F. Supp. 352, 356 (S.D.N.Y. 1995)).

Thus,

the court agrees with defendants that plaintiff must properly
lay a foundation under Rule 803(4) or 803(6) to introduce the
plaintiff’s certified medical evidence.

At the time plaintiff

introduces such medical evidence, defendants may object on the
ground, inter alia, that the voluminous nature of the records is
43

lacking proper foundation or likely to confuse or mislead the
jury to such an extent that its probative value is substantially
outweighed, pursuant to Rule 403. 3

Fed. R. Evid. 403.

Accordingly, defendants’ motion to preclude plaintiff’s medical
records is denied without prejudice to renewal at trial.
E. References to the City, the City Attorneys, and
Indemnification
Defendants also seek to preclude any evidence or
references relating to the employment or indemnification of the
defendant officers by New York City, including references to
defense counsel as “City Attorneys.”

(Def. Mem. at 14-16.)

Specifically, defendants seek to redact any Bates numbers on
exhibits referring to the City, alter the caption of the case to
exclude the City, and also request that any references to the
City’s counsel be referred to at trial as “defense counsel.”
(Id.)

Plaintiff represents that he “does not intend to offer

evidence or argument regarding indemnification,” but opposes
defendants request to redact any Bates numbers, alter the
caption, or refer to the City’s counsel as “defense counsel.”
(Pl. Opp. at 7-9.)
3
Defendants contest the admission of plaintiff’s trial exhibit 5
“Helping Hands Therapy Center Records,” as lacking a proper foundation under
Rule 901 and hearsay under Rule 802. (Def. Mem. at 14.) Plaintiff contends
that he has requested a certified set of records and anticipates receiving
such records imminently. (Pl. Opp. at 7.) Accordingly, in light of the
discussion above, the court sustains defendants’ objection but will permit
plaintiff the opportunity to authenticate exhibit 5 at the Final Pretrial
Conference.

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Here, the court agrees that evidence regarding
indemnification would be prejudicial against defendants because
such evidence might “encourage a jury to inflate its damages
award because it knows the government -- not the individual
defendants -- is footing the bill.”

Othman v. Benson, No. 13-

cv-V4771 (NGG)(SJB), 2019 WL 1118035, at *4 (E.D.N.Y. Mar. 11,
2019) (quoting Williams v. McCarthy, No. 05-cv-10230 (SAS), 2007
WL 3125314, at *7 n.46 (S.D.N.Y. Oct. 25, 2007)); Hernandez v.
Kelly, No. 09-cv-1576 (TLM), 2011 WL 2117611, at *6 (E.D.N.Y.
May 27, 2011) (finding that evidence regarding the City's
potential indemnification of defendant police officers would be
prejudicial against the defendants); Davis v. City of New York,
296 F.R.D. 127, 130 (E.D.N.Y. 2013) (“No reference to defense
counsel as ‘the City’ or suggestion that the City may indemnify
Defendants shall be made.”).

Accordingly, the court grants

defendants’ motion in limine and prohibits any references or
evidence relating to the potential indemnification of the
defendant officers, including but not limited to references to
defense counsel as “City” or “Corporation” counsel.
Next, the court must consider whether references to
the City shall be permitted during the trial and on Bates stamps
on relevant exhibits and the case caption.

Although the court

recognizes that some district courts have permitted references
to the City and counsel as “City attorneys,” where, as here, the
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City remains a defendant, see Adams v. City of New York, 993 F.
Supp. 2d 306, 329 (E.D.N.Y. 2014), Joseph v. Deluna, No. 15-cv5602 (KMW), 2018 WL 5095668, at *3 (S.D.N.Y. Oct. 19, 2018), the
court agrees with defendants that any references to the City may
unnecessarily confuse the jury or lead the jury to believe that
the defendant officers may be indemnified by the City.

Indeed,

“[w]hile the City has been involved in this litigation, that
fact is irrelevant to the determination of liability and
damages, which should be based solely on the facts and the law.”
Est. of Jaquez v. Flores, No. 10-cv-2881 (KBF), 2016 WL 1060841,
at *2 (S.D.N.Y. Mar. 17, 2016).

Accordingly, the court

concludes that any references to defense counsel’s employment by
the City shall be precluded.

Moreover, the court agrees that

“[a] reference to ‘Corporation Counsel’ may itself be
misunderstood by jurors as suggesting some association with a
corporation or the City, leading to . . . associations with a
deep pocket,” Flores, 2016 WL 1060841, at *2.

Thus, the parties

are not permitted to make any reference to the City on Bates
stamped prefixes on documents admitted at trial, and on all
documents bearing the case caption that will be put before the
jury (e.g., verdict sheet).

Further, any reference to

defendants’ counsel as “City Attorneys” or “Corporation Counsel”
is prohibited.

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IV.

Objections to Trial Exhibits
Within their motions of limine, the parties also

objected to the inclusion of certain trial exhibits at trial.
A. Plaintiff’s Objections
Specifically, plaintiff objects to the inclusion of
defendants’ trial exhibits: A (Facebook photo), B (event
chronology), C (Ms. Cosares’s deposition transcript), D
(plaintiff’s rap sheet), L (plaintiff’s medical record regarding
right elbow), portions of Q (plaintiff’s medical record
regarding right elbow), R (plaintiff’s medical records including
right foot bunionectomy), T (complaint in Scoma v. United
States, 02-cv-2970 (JG) (E.D.N.Y.)), U (Decision and Order in
Scoma v. United States, 02-cv-2970 (JG) (E.D.N.Y.)), W (second
amended complaint in this action), X (first amended complaint in
this action), Y (complaint in this action), Z (plaintiff’s
discovery responses in this action), BB (notice of claim in this
action), CC (complaint in John Scoma v. Man-Dell Food Stores,
Inc., 3250/2013 (Kings Cty. Sup. Ct.)), DD (transcript of
examination in John Scoma v. Man-Dell Food Stores, Inc.,
3250/2013 (Kings Cty. Sup. Ct.)), EE (transcript of examination
in John Scoma v. Man-Dell Food Stores, Inc., 3250/2013 (Kings
Cty. Sup. Ct.)).
Plaintiff also seeks to supplement his exhibit list
with the following exhibits: 6 (Brander’s memo book), 7 (Taser
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Report); 8 ESD2 Report for Case No. E6-2015-14713; and 9 ESD2
Report for Case No. E6-2015-14714.

(Pl. Mem. at 7 n.1.)

As

noted in this court’s Chambers Practices, “[o] nly exhibits
listed in the pretrial order shall be offered in evidence except
when prompt notice has been provided, and good cause and a lack
of prejudice are shown.”

(Chambers Practices, Section IV.A.11.)

Plaintiff’s proposed exhibits are not identified on the Joint
Pretrial Order and plaintiff has not offered a sufficient reason
why these belatedly identified exhibits should be permitted at
trial.

(See Pl. Mem. at 7 n.1.)

Further, defendants offer

several reasons why defendants would be prejudiced by the
inclusion of these exhibits.

(See Def. Opp. at 6-8.)

Accordingly, the court precludes plaintiff’s trial exhibits 6,
7, 8, and 9 identified by plaintiff at the present time.

At the

Final Pretrial Conference, the plaintiff may renew his motion to
include exhibits 6, 7, 8, and 9 upon a showing of good cause and
lack of prejudice and, similarly, defendants may make any
objections.
For the reasons set forth above, the court makes the
following rulings regarding defendants’ exhibits:
•

Exhibit A (Facebook photo) is relevant and admissible.

•

Exhibits B (event chronology) and C (Ms. Cosares’s
deposition transcript) are relevant and admissible.

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•

Exhibit D (plaintiff’s criminal history (“rap”) sheet) is
precluded.

•

The court reserves decision regarding Exhibits L
(plaintiff’s medical record regarding right elbow),
portions of Q (plaintiff’s medical record regarding right
elbow), and R (plaintiff’s medical records including
right foot bunionectomy).

To the extent plaintiff’s

damages are limited to his left elbow, the court agrees
that unrelated medical evidence is not relevant or
admissible and will resolve any objections at trial.
•

Exhibits T (complaint in Scoma v. United States, 02-cv2970 (JG) (E.D.N.Y.)) and U (Decision and Order in Scoma
v. United States, 02-cv-2970 (JG) (E.D.N.Y.)) are
precluded.

Exhibits CC (complaint in John Scoma v. Man-

Dell Food Stores, Inc., 3250/2013 (Kings Cty. Sup. Ct.)),
DD (transcript of examination in John Scoma v. Man-Dell
Food Stores, Inc., 3250/2013 (Kings Cty. Sup. Ct.)), EE
(transcript of examination in John Scoma v. Man-Dell Food
Stores, Inc., 3250/2013 (Kings Cty. Sup. Ct.)) are
relevant and admissible.

The court will admit evidence

of plaintiff’s left elbow injury from the Key Foods
lawsuit to the extent it is relevant to damages or is
used to impeach plaintiff.

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•

Exhibits W (second amended complaint in this action), X
(first amended complaint in this action), Y (original
complaint in this action), Z (plaintiff’s discovery
responses in this action), and BB (notice of claim in
this action) are permitted for impeachment purposes.
B. Defendants’ Objections
Defendants object to the inclusion of plaintiff’s

trial exhibit 5 (Helping Hands Therapy Center Records).

As

discussed above, the court sustains the defendants’ objection to
the admission of plaintiff’s exhibit 5 as lacking a proper
foundation under Rule 901 and hearsay under Rule 802.
Mem. at 14.)

(Def.

Because plaintiff contends that he has requested a

certified set of records and anticipates receiving such records
imminently, however, the court will permit plaintiff the
opportunity to authenticate exhibit 5 at the Final Pretrial
Conference.

(Pl. Opp. at 7.)

As discussed above, the court

also grants defendants’ motion to preclude plaintiff’s trial
exhibits 6, 7, 8, and 9 as untimely and prejudicial.

The court

will permit plaintiff to show good cause and lack of prejudice
at the Final Pretrial Conference why these exhibits should be
admitted.

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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: Plaintiff’s motion to preclude defendants from
introducing evidence of: (1) plaintiff’s prior federal
lawsuit (Scoma v. United States, No. 02-cv-2970 (JG)
(E.D.N.Y. 2002)) regarding his leg injury sustained
while playing basketball and related exhibits; (2)
plaintiff’s workout regimen at the time of his arrest
in September 2015; (3) plaintiff’s medical steroid use
unless explained by medical testimony; and (4)
plaintiff’s criminal history, arrests, and discharge
from the military, unless necessary for impeachment.
The court also GRANTS defendants’ motion to
preclude plaintiff from: (1) requesting a specific
dollar amount regarding non-economic injuries such as
pain and suffering; (2) introducing medical evidence
that is not certified or otherwise lacks a proper
foundation or is not authenticated; (3) referring to
defense counsel’s employment by the City, any
potential indemnification by the City, any reference
to the City on the Bates stamped prefixes on documents
admitted at trial, and on all documents bearing the
51

case caption that will be put before the jury (e.g.,
verdict sheet).
B. DENIES: Plaintiff’s motion to preclude defendants from
introducing: (1) evidence or testimony regarding the
pre-tasing information to the extent the court has
found such information is relevant and admissible; (2)
testimony from officer witnesses as to the pre-tasing
events and discussions with Brielle Scoma and
Christina Cosares; (3) evidence from plaintiff’s Key
Foods lawsuit as it relates to plaintiff’s left elbow
and emotional injury; (4) plaintiff’s Facebook photo;
(5) use of steroids if properly supported by medical
evidence; and (6) any litigation documents from this
action used for impeachment purposes.
The court also DENIES defendants’ motion to
preclude plaintiff from introducing a specific dollar
amount for compensable damages if supported by trial
evidence.
C. DENIES AS MOOT: Defendants’ motion to preclude any
evidence of the officers’ disciplinary histories or
prior lawsuits.
D. SUSTAINS:

Defendants’ objection to plaintiff’s

introduction of plaintiff’s exhibit 5 (Helping Hands
Therapy Center Records).
52

The court will permit

plaintiff to offer proof at the Final Pretrial
Conference regarding the authenticity of plaintiff’s
exhibit 5.
Similarly, the court the also sustains
defendants’ objection as to plaintiff’s trial exhibits
6, 7, 8, and 9 as untimely and prejudicial.

The court

will permit plaintiff to show good cause and lack of
prejudice at the Final Pretrial Conference why these
exhibits should be admitted.
E. RESERVES: The court will reserve its decision for
trial to rule on objections regarding: (1) plaintiff’s
proposed charge to the jury regarding punitive
damages; (2) except as provided above, plaintiff’s and
defendants’ medical records; and (3) any evidence or
testimony noted above that is subject to further
review at trial.

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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
disputed exhibits.
The defendants Azeem Chatha, Fernando Caches, Damir
Vukic, Argely Delacruz, Francisco Allende, Spencer Craven, and
Gregory Mannino are dismissed with prejudice pursuant to
plaintiff’s letter dated May 3, 2021 (ECF No. 127) and Federal
Rule of Civil Procedure 41(a)(2).
SO ORDERED.

______/s/ _______
HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
Dated: May 4, 2021
Brooklyn, New York

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