Ferreira v. City of Binghamton et al

Filing 157

ORDER Granting in part / Denying in part / Reserving in part Defts City/Binghamton & Miller's 101 Motion in Limine; and, DENYING Pltf's 102 Motion in Limine to preclude testimony of Dr. Jeffrey Lyness; and, RESERVING Pltf's 103 Motion in Limine to preclude certain medical record information; and, Granting in part / Denying in part / Reserving in part Pltf's 104 3rd Motion in Limine; Signed by Sr. District Judge Thomas J. McAvoy dtd 9/16/2016 (cml)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JESUS FERREIRA,
Plaintiff,
vs.

3:13-CV-107

CITY OF BINGHAMTON,
BINGHAMTON POLICE DEPARTMENT, and
OFFICER KEVIN MILLER
Defendants.

Thomas J. McAvoy,
Sr. U.S. District Judge

DECISION and ORDER
Plaintiff Jesus Ferreira commenced the instant action pursuant to 42 U.S.C. §
1983 and state law, alleging that Defendants used excessive force against him when
executing a search warrant. Before the Court are the parties’ motions in limine. See
dkt. #s 101-104.
I.

BACKGROUND
In the early morning hours of August 25, 2011, a Binghamton Police Department

SWAT team executed a “no-knock” warrant at 11 Vine Street, a residence in that city.
Plaintiff, an overnight guest, was sleeping on the couch in the living room, which was
located near the front door. After using a battering ram to break through the front door,
officers entered the living room. Defendant Officer Kevin Miller, the first member of the
SWAT team to enter the building, shot the Plaintiff once. Plaintiff suffered severe

injuries, leading to the removal of his spleen.
Plaintiff sued the City of Binghamton, the Binghamton Police Department, and
Officer Miller, among others. Plaintiff alleged that Defendants violated his constitutional
right to be free from excessive force and false arrest, both through the conduct of
Defendant Miller and through the policies and practices of the Binghamton Police
Department. Plaintiff also raised state-law tort claims. After motion practice, the only
remaining Defendants were the Police Department, the City and Officer Miller. At the
close of discovery, Defendants filed a motion for summary judgment, which the Court
granted in part and denied in part. The parties then filed the instant motions in
anticipation of trial.
II. Analysis
A.

Defendants’ Motions

Defendants move to dismiss certain claims and to preclude evidence of various
types on various grounds. The Court will address each issue in turn.
a.

Motions to Dismiss

Defendants offer argument as to why a number of the claims remaining in the
case should be dismissed.
First, they contend that a Section 1983 claim of excessive force is identical to a
state-law assault and battery claim, and that the Court should “simplify” the jury
instructions by providing the same instruction to cover both claims. The Court fails to
see how such an application is a proper subject for a motion in limine. The Court
expects that the issue will be raised in the jury charge conference and will deny the
motion with leave to renew at an appropriate time.
2

Next, Defendants argue that the Court should dismiss an claim for excessive
force based on the use of handcuffs against the Plaintiff after he was shot. They argue
that Plaintiff has not identified the officer who handcuffed him, and therefore cannot
prevail on that claim. The Court has already addressed this issue in deciding
Defendants’ summary judgment motion.
Defendants here attempt to use a motion in limine to seek reconsideration of the
Court’s decision. When a party files a motion for reconsideration, “[t]he standard for
granting such a motion is strict, and reconsideration will generally be denied unless the
moving party can point to controlling decisions or data that the court
overlooked–matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir.
1995). Such a motion is “not a vehicle for relitigating old issues, presenting the case
under new theories, securing a rehearing on the merits, or otherwise taking ‘a second
bite at the apple[.]’” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 41
(2d Cir. 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)).
Reconsideration should be granted when the moving party shows “‘an intervening
change in controlling law, the availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.’” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956
F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C. Wright, A. Miller & E. Cooper, F EDERAL
PRACTICE & PROCEDURE § 4478 at 790).
Even assuming that a motion for reconsideration is proper at this time, the Court
will deny the motion. Defendants simply attempt to relitigate matters already decided
by the Court in the Plaintiff’s favor. The Court has already decided this issue and
3

Defendants’ attempt to get a second bite at the apple and reargue the matter will be
denied.
Defendants similarly argue that the Court should grant judgment on Plaintiff’s
claim that false arrest occurred when Defendants held him at the hospital after the
shooting, even though they had no probable cause or arrest warrant and no cause to
keep him detained in that setting. The Court has already ruled on this issue and will not
entertain Defendants’ attempt to revive it here. Similarly, the Court will deny the motion
as it pertains to Plaintiff’s general negligence claim.
Defendants also seek dismissal of Plaintiff’s claims for improper movement of
Plaintiff’s body, negligent performance of duties, negligent infliction of emotional
distress, and breach of special duty. Defendants offer legal argument that these claims
are not available, but no explanation for why they did not seek to dismiss such claims at
an earlier point in the litigation, either via a motion to dismiss or at the summary
judgment stage. Such motions are inappropriate now, on the eve of trial. The motions
will be denied, though the Court’s decision does nothing to preclude Defendants from
raising an appropriate motion on these issues at the close of the Plaintiff’s case.
b.

Evidentiary Motions
i.

Internal Affairs Complaints and/or Prior Disciplinary
Actions Against Officers Involved in the Events in
Question

Defendants first move to preclude introduction of any Internal Affairs reports
concerning any officers who may testify at trial. They argue that introduction of such
evidence is precluded by Federal Rules of Evidence 403 and 404(b) as unduly
prejudicial and improper character evidence. The Defendants summarize the seven
4

incident reports in question but, citing the “sensitivity” of the material, do not include
copies of the reports with their motion. They offer to have the Court review the
evidence in camera if necessary. Plaintiff responds that the complaints are relevant to
the Defendants’ intent in using force against him. Thus, incidents of “past complaints of
excessive force, false arrest, civil rights violations, misconduct, failure to comply with
police procedures, and prior instances of untruthfulness” become relevant. Such past
disciplinary proceedings could also be used to impeach witnesses and undermine their
credibility.
Defendants’ motion concerns records of investigations into civil complaints
against Binghamton police officers. Such evidence would not provide any insight into
the events on the day in question, and Plaintiff apparently does not intend to offer such
evidence for that purpose. Instead, Plaintiff appears to offer the evidence to establish
intent or motive, and perhaps lack of mistake. Federal Rule of Evidence 404(b)
provides that “[e]vidence 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.” F ED. R. EVID. 404(b)(1). Such evidence is admissible
for other purposes, however, “such as proving motive, opportunity, intent, absence of
mistake, or lack of accident.” FED. R. EVID. 404(b)(2). “Under Rule 404(b), wrongful
acts evidence may not be admitted merely to show the defendant’s propensity to
commit the act in question.” Berkovich v. Hicks, 922 F.2d 1018, 1022 (2d Cir. 1991).
That “evidence may be admitted,” however, “for any other relevant purpose under our
‘inclusionary’ approach.” Id. (quoting United States v. Brennan, 798 F.2d 581, 589 (2d
Cir. 1986)).
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A court has “broad discretion” in determining whether to admit such evidence,
but the court must also weigh the probative value of the evidence against its prejudicial
effect pursuant to Rule 403. Id. “The Second Circuit has stated that for evidence of
prior complaints against a police officer to be admissible under Rule 404(b) for the
purpose of establishing a pattern of conduct, ‘the extrinsic acts must share unusual
characteristics with the act charged or represent a unique scheme.” Jaquez v. Flores (In
re Estate of Jaquez), 99 Fed R. Evid. Serv. (Callaghan) (S.D.N.Y. 2016) (quoting
Berkovich, 922 F.2d at 1022). Prior evidence of complaints can be used to show intent
when the incidents are similar and involve complainants who are similarly situated, such
as persons of the same race. See, e.g., Lewis v. City of Albany Police Dept., 547
F.Supp.2d 191, 200 (N.D.N.Y. 2008) (prior complaints were “strikingly similar” in that
they all involved complaints of officers using “excessive force upon the head of
handcuffed African-American suspects” and to show the officers “motivation and intent
with regard to the use of force against” the plaintiff).
Defendants offer summaries of seven separate Internal Affairs Reports which
they claim should be precluded. Plaintiff does not address these particular Reports,
offering instead a general argument that such reports should be admitted. Plaintiff also
does not provide the Court with any definite information on what reports he may tend to
introduce.
The Court notes that the summaries that Defendant provides of the Reports in
question indicate that the evidence is likely “propensity” evidence–meant to show that
Defendant Miller has a pattern of using excessive force and engaging in misconduct
while on duty. Defendants describe one of the Reports as concerning discipline Officer
6

Miller received after backing his police car into another police vehicle. Another reports
discipline that Miller received for failing to show at court hearings. Other reports
concern claims of excessive force Officer Miller allegedly used in arresting suspects.
None of those reports involved the execution of a search warrant or shooting of a
person with a gun. Such evidence would not be admissible, since none of these
Reports describe actions or events strikingly similar to those in this case. Plaintiff
points to no “intent” that these reports reveal.
Of course, the Plaintiff would have to seek to introduce any such reports.
Nothing before the Court indicates any particular reports which the Plaintiff may seek to
introduce, and the Court cannot exclude evidence based solely on the Defendants’
representations about what may be introduced. The Court will therefore deny the
motion with leave to renew at an appropriate time during the trial. The Court will apply
the above principles in determining whether to admit any such evidence. The question
of whether such evidence could be introduced for another purpose, such as
impeachment during cross examination, is of course another question and one that the
Court will take up at an appropriate time.
ii. Police Regulations Regarding Use of Force
Defendants argue that any police regulations regarding use of force are
irrelevant to the questions before the jury and should be precluded. The Fourth
Amendment inquiry here, Defendants contend, is whether the officer’s actions were
objectively reasonable under the circumstances, and the regulations do not address
that issue.
Excessive force claims brought pursuant to the Fourth Amendment “‘are properly
7

analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.’” Shamir
v. City of New York, 804 F.3d 553, 556 (2d Cir. 2015) (quoting Graham v. Connor, 490
U.S. 386, 388 (1989)). Using “excessive force renders a seizure of the person
unreasonable and for that reason violates the Fourth Amendment.” Id. To decide
whether the force was reasonable, the finder of fact should pay “‘careful attention to the
facts and circumstances of each particular case, including the severity of the crime at
issue, whether the subject poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.’” Soares v. Connecticut, 8 F.3d 917, 921 (2d Cir. 1993) (quoting Graham, 490
U.S. at 396). 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).
Federal Rule of Evidence 401 defines relevant evidence as evidence that “(a) . . .
has any tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” FED. R. EVID.
401. Relevant evidence is generally admissible. FED. R. EVID. 402. Defendants’
argument here is that evidence of police procedures is irrelevant to Plaintiff’s Fourth
Amendment claims, since the standard for deciding such claims is one based on the
reasonableness of the Defendants’ conduct under the facts and circumstances of the
case, not on whether the Defendant violated any particular rule or procedure. Courts
have found that “local police enforcement practices generally have no bearing on the
reasonableness of a search or seizure because such practices, ‘even if they could be
practicably assessed by a judge, vary from place to place and from time to time.’”
8

United States v. Wilson, 699 F.3d 235, 243 (2d Cir. 2012) (quoting Whren v. United
States, 517 U.S. 806, 815 (1996)). Further, the Fourth Am endment’s protections are
constant, whatever rules states put in place to direct officers; “‘while States are free to
regulate . . . arrests however they desire, state restrictions do not alter the Fourth
Amendment’s protections.’” Id. (quoting Virginia v. Moore, 553 U.S. 164, 172 (2008)).
Thus, “the Fourth Amendment does not generally incorporate local statutory or
regulatory restrictions on seizures and . . . the violation of such restrictions will not
generally affect the constitutionality of a seizure supported by probable cause.” Id.
The Court agrees that evidence that Defendant Miller violated police regulations
or standard operating procedure is irrelevant to the question of whether Miller used
excessive force against the Plaintiff. To the degree that Plaintiff seeks to introduce
such evidence for that purpose, the Court will exclude it. Of course, Defendants seek
to preclude the evidence only on these grounds, and Plaintiff may introduce such
evidence for any other relevant purpose. The Court notes that the jury instructions will
in any case clarify the Fourth Amendment issue.
iii. Potential Indemnification
Next, Defendants seek to preclude any evidence that the City of Binghamton
may indemnify any officers found liable, and to prevent Plaintiff’s counsel from
referencing any such indemnification during jury selection. Plaintiff responds by
informing the Court of the rules for vicarious liability in New York.
The Court will grant the motion in this respect. Who may pay for any damages
the jury may award in this case is irrelevant to the questions the jury must answer. See
FED. R. EVID. 401, 402. The fact that the Defendant City may or may not cover
9

damages assigned to Defendant Miller will not make more or less likely some fact of
consequence to the litigation, and would serve only to encourage the jury to confuse the
issues and render a decision based on the f inancial condition of the parties, which is
not material to this dispute. See F ED. R. EVID. 403 (“The court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”). Courts have concluded
that evidence of indemnification is generally inadmissible as irrelevant. See, e.g.,
Anderson v Aparicio, 25 F.Supp.3d 303, 314 (E.D.N.Y. 2014); Jean-Laurent v.
Hennesssy, 840 F.Supp.2d 529, 550 (E.D.N.Y. 2011) (precluding “any evidence that
the City may indemnify the defendants under General Municipal Law.”). At the same
time, if a defendant testifies as to an inability to pay a damages awarded against him,
courts have permitted plaintiff to introduce evidence of indemnification agreements.
See Mathie v. Fries, 121 F.3d 808, 816 (2d Cir. 1997); Anderson, 25 F.Supp.3d at 314
(quoting Hogan v. City of New York, No. 04cv3298, 2008 U.S. Dist. LEXIS 3990, at *6
(E.D.N.Y. Jan. 18, 2008) (“[I]ndemnification evidence is a shield to rebut claims of
limited resources by officers.”)). As such, the motion will be granted with respect to
plaintiff’s introduction of any evidence of indemnification during his case-in-chief. If,
however, Defendants assert an inability to pay a damages award, Plaintiff may
introduce rebuttal evidence of indemnification.
iv. Specific Dollar Amount for Pain and Suffering Damages
Defendants next seek to preclude Plaintiff from naming a specific dollar amount
to compensate him for his pain and suffering. They argue that the jury would be
10

encouraged by a mistaken belief that a particular dollar amount was supported by some
legal authority or precedent.
In the Second Circuit, the decision of whether to permit an attorney to argue for a
specific amount of pain-and-suffering damages “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 v. Union
Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997). At the sam e time, “specifying target
amounts for the jury to award is disfavored. Such suggestions anchor the jurors’
expectations of a fair award at the place set by counsel, rather than by the evidence.”
Consorti v. Armstrong World Indus., 72 F.3d 1003, 1016 (2d. Cir. 1995).
The Court will grant the motion in this respect. The Court is confident that the
instructions provided the jurors will enable them to assess the appropriate amount of
damages for pain and suffering based on the appropriate legal principles. A suggestion
of a specific amount would be both contrary to the nature of the instructions and could
lead the jury to make its decision based not on the evidence but upon a range
suggested by the attorneys. Plaintiff may of course suggest a specific amount of
damages for other types of damages.
iv. Precluding Lay Witnesses
Defendants seek to preclude the testimony of a number of the persons on
Plaintiff’s pre-trial witness list. They contend that these witnesses can offer no relevant
testimony, and that any testimony they provide will only serve to confuse the issues and
unfairly prejudice the case. The Court will address each witness in turn.
a. Chief Joseph Zikuski
11

Defendants argue that Binghamton Police Chief Joseph Zikuski should be
precluded from testifying. They argue that he has no personal knowledge regarding
Plaintiff’s remaining claims, as he was not on the scene of the incident until after
Plaintiff was already transported to the hospital. Plaintiff responds that Chief Zikuski
has knowledge of police department operations, SWAT team practices, and procedures
that could and should have been followed on that day. He also served as
spokesperson for the Department after the incident and participated in the investigation.
The Court will deny the motion in this respect. Plaintiff has asserted that Chief
Zikuski has information relevant to a variety of his claims, and precluding him from
testifying altogether because police procedures are not relevant to Plaintiff’s Fourth
Amendment claim is to narrow the issues in the case too much. Moreover, the Court
cannot know at this point the scope of the parties’ questioning of the Chief, and
precluding of any testimony is premature. Defendants may of course challenge the
relevancy of any testimony at trial.
b. Lt. Larry Hendrickson
Defendants also seek to preclude the testimony of Lt. Larry Hendrickson.
Hendrickson usually commands the SWAT team, but was on vacation on the day of the
incident. He thus, Defendants argue, has no relevant testimony to share with the jury.
Plaintiff responds that Lt. Hendrickson has relevant information on SWAT team
procedures and practices.
The Court will deny the motion with respect to Lt. Hendrickson as well. While the
Court recognizes that Lt. Hendrickson’s testimony about procedures may be irrelevant
to the Fourth Amendment claim, the Court is not convinced that he is incapable of
12

offering any relevant testimony on any of the claims in the lawsuit. Moreover, the Court
cannot at this point predict exactly what testimony Hendrickson will give. Defendants
may of course raise additional objections to particular testimony at the time of trial.
c. Investigator Michelle Stebbins
Defendants insist that Investigator Stebbins, who was in charge of the
Binghamton Police Department’s Identification Unit at the time in question, has no
relevant testimony to offer. Investigator Stebbins arrived at the scene after Plaintiff was
transported to the hospital and did not witness the events in question. Defendants
admit, however, that Stebbins photographed and drew diagrams of the scene and
collected physical evidence. Defendants are willing to stipulate to any of the evidence
she collected and any diagrams she drew. As any failure-to-investigate claim has been
dismissed, she has no relevant information to offer.
The Court will deny the motion with respect to Investigator Stebbins as well. The
condition of the scene is a question in this litigation, and Stebbins investigated it. The
Court cannot conclude that she has no potentially relevant information. Defendants
may of course raise additional and appropriate objections to particular testim ony at the
time of trial.
iv. Expert Witnesses
Defendants seek to exclude the testimony of Plaintiff’s expert witnesses on
various grounds. The Court will address them in turn.
a. Expert Witness Standard
Federal Rule of Evidence 702 provides that:
[a] witness who is qualified as an expert by knowledge, skill, experience,
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training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts
of the case.
FED. R. EVID. 702. The role of the trial court in determining the admissibility of expert
testimony is to “ensure that any and all scientific testimony or evidence admitted is not
only relevant, but reliable.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993).
Thus, “[u]nder Daubert, ‘the district court functions as the gatekeeper for expert
testimony[.]’” Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d
Cir. 2008) (quoting Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)). These
gatekeeping functions “appl[y] not only to testimony based on ‘scientific’ knowledge, but
also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 141 (1999). Courts are to f lexibly apply a series of
factors in making this determination, including: “[w]hether a ‘theory or technique . . . can
be (and has been) tested’ . . . [w]hether it has been subjected to peer review and
publication’; . . . [w]hether, in respect to a particular technique, there is a high ‘known or
potential rate of error’ and whether there are ‘standards controlling the technique’s
operation’; and [w]hether the theory or technique enjoys ‘general acceptance’ within a
‘relevant scientific community.’” Id. at 149-150 (quoting Daubert, 509 U.S. at 592-94).
b. Gene Maloney
Defendants seek to preclude the testimony of Plaintiff’s expert in police
procedures, Gene Maloney. They do not challenge his qualifications, but argue that his
14

methodology is unreliable and unlikely to help the trier of fact.
Defendants’ arguments do not address the methods Maloney used in
constructing his report, but instead quarrel with his conclusions. Defendants offer a
conclusory statement that Mahoney’s “testimony indicates that he has not tested his
theories, has engaged in rank speculation, has not be[en] subjected to peer rev iew, and
lacks conclusions relevant to the remaining claims.” The Court finds Maloney’s
methodology adequate to the type of questions he attempts to answer and to the field in
which his expertise lies–police procedure, tactics and operations. Such inv estigations
are not likely to be published in peer-reviewed journals and are not subject to
randomized testing. Instead, Maloney’s report necessarily compares the actions of the
Binghamton Police and Officer Miller to the actions and methods of other police
departments, and evaluates the events in light of his training. Under the circumstances,
such methodology is appropriate. Defendants’ arguments with the methodology are
related more to Mahoney’s conclusions. The persuasiveness of his conclusions is an
issue for the jury.
Defendants also contend that Maloney should be precluded from testifying
because his opinions on proper police methods and practices are unlikely to help the
trier of fact. In part, Defendants contend that these opinions are inadm issible “because
they are based on pure speculation and surmise.” They Court rejects this argument,
which is simply a quarrel with the opinions and an attack on their persuasiveness, not
an argument for how they will not aid the trier of fact. Defendants also contend that,
because issues of police practice are not relevant to Plaintiff’s Excessive Force claim,
Maloney’s testimony will not aid the trier of fact. The Court agrees that, to the extent
15

the testimony is designed for that purpose, it would not be relevant. Given that Plaintiff
has state-law negligence claims, however, the Court will permit the testimony for the
purpose of identifying negligence on Defendant Miller’s part, to the extent that Maloney
can offer such testimony. Defendants may of course renew their objections as the
proof comes in at trial.
c. Dr. Scott LaPoint
Defendants next seek to exclude the testimony of Dr. Scott LaPoint, who Plaintiff
offers as an expert who can offer “forensic testimony with respect to: trajectory, range
of fire; medial conditions/injuries, their causation, their significance, consequences,
permanence, manifestations and affect on function.” See Plaintiff’s Disclosure of
Expert Witness, Exh. V to Plaintiff’s Response to Defendants’ Motion for Summary
Judgment, dkt. # 89-24. Defendants argue that Dr. LaPoint should be precluded f rom
testifying on trajectory/ballistic analysis because he has no qualifications in that field,
and because his methodology is unreliable.
Dr. LaPoint’s curriculum vitae reveals that he is licensed medical doctor with a
specialty in pathology. See dkt. # 89-24. He is board certified in anatomic and clinical
pathology. Id. Dr. LaPoint is currently the laboratory of director several entities in and
around Erie County, New York, including the Erie County Public Health Laboratory, the
Erie County STD Clinic Laboratory, the Niagara County STD Clinic Laboratory, and
West Ridge Obstetrics and Gynecology in Webster, New York. Id. Dr. LaPoint has
also served as a forensic pathology consultant and contractor for the Erie County
Medical Examiner’s Office since 2011. Id. He has also been a clinical instructor and
professor at the University of Rochester Medical Center since 2002. Id. Since 2001,
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Dr. LaPoint has served as an anatomic and clinical pathologist at various hospitals in
New York. Id. LaPoint’s past work experience includes ten years as a deputy medical
examiner for the Monroe County Medical Examiner’s Office in Rochester, New York.
Id. LaPoint lists several publications. Id. None of them address trajectory or ballistics
analysis. Id. Dr. LaPoint also lists numerous New York State “Certificate of
Qualification” categories, including bacteriology, clinical chemistry, endocrinology,
hematology, mycobacteriology, mycology, parasitology, and transfusion services. Dr.
LaPoint’s C.V. does not list any expertise in ballistics or gunshot residue.
The Court finds the papers and briefing on this issue are insufficient to determine
whether Dr. LaPoint is qualified to testify on the issue of trajectory and ballistic analysis
in this case. The Court notes that Dr. LaPoint’s primary expertise seems to be in
pathology, “[t]he branch of medical study that examines the origins, symptoms, and
nature of diseases.” Bryan A. Gardner, ed., B LACK’S LAW DICTIONARY (8th Ed., 2004).
Such training and knowledge hardly comports with knowledge of ballistics and bullet
trajectory. None of his publications address this issue. At the same time, however, Dr.
LaPoint has also served as a medical examiner and has testified in a large number of
criminal cases. He has worked as a consulting forensics analyst. As such, his resume
hints that he has sufficient experience and training to render an expert opinion on the
issues his report addresses. The Court will therefore reserve ruling on the admissibility
of Dr. LaPoint’s testimony until after the Court conducts a Daubert hearing outside the
presence of the jury.
Defendants also seek to preclude Dr. LaPoint’s testimony as a rebuttal witness.
They argue that Dr. LaPoint’s testimony concerns issues central to the case–where
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Plaintiff was when Defendant Miller shot him—and his testimony should be introduced
only as part of Plaintiff’s case-in-chief. Plaintiff did not name Dr. LaPoint during his
initial disclosures. Since he is not properly a rebuttal witness, he should not be
permitted to testify during the rebuttal portion of the case.1 As this issue can be
decided as a matter of law, the Court will address it here.
Defendants argue that Dr. LaPoint must testify in the case in chief. They cite to
Braun v. Lorillard, Inc., 84 F.3d 230 (7th Cir. 1996). That case involved claims that the
defendant knowingly endangered plaintiffs by selling cigarettes with filters that
contained dangerous amounts of asbestos. Plaintiffs failed to disclose a fact witness
who could testify that the defendant tobacco company had approached a company he
worked for years before about manufacturing a safer filter on their final pre-trial list. Id.
at 236. The trial judge precluded plaintiffs from calling this witness during their case in
chief; plaintiffs had long been aware of this witness and his potential testimony and did
nothing to interview him or disclose his testimony until briefly before trial. Id. The Court
of Appeals saw no abuse in discretion in precluding the witnesses testimony during the
Plaintiff’s case. Id. at 237. The court also upheld the trial judge’s decision to preclude
the witness from testifying as a rebuttal witness, finding that “[t]he plaintiff who knows
that the defendant means to contest an issue that is germane to the prima facie case
(as distinct from an affirmative defense) must put in his evidence on the issue as part of
his case in chief.” Id. at 237. To do otherwise, the court noted, would permit the

1

The Court notes that Defendants do not move to preclude Dr. LaPoint from
testifying in Plaintiff’s case-in-chief, despite Plaintiff’s failure to name him in his initial
disclosures. Defendants disclosed Dr. LaPoint’s report to Defendants on October 14,
2015.
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plaintiff to “reverse the order of proof, in effect requiring the defendants to put in their
evidence before the plaintiff put in his.” Id. Defendants contend that this Seventh
Circuit holding requires the Defendants to call Dr. LaPoint in their case-in-chief.
Another Seventh Circuit case cited by the Defendants, however, offers a fuller
explanation of the purpose of rebuttal witnesses. In Peals v. Terre Haute Police Dep’t,
535 F.3d 621, 630 (7 th Cir. 2008), the court pointed out that “‘[t]he proper f unction of
rebuttal evidence is to contradict, impeach or defuse the impact of the evidence offered
by an adverse party.’” (quoting United States v. Grintjes, 237 F.3d 876, 879 (7 th Cir.
2001)). Rebuttal evidence that does not seek “‘to contradict, impeach or defuse the
impact of the evidence offered by an adverse party’” is not proper. Id. (quoting Grintjes,
237 F.3d at 879).
Defendants seem to suggest that the fact that the evidence LaPoint offers would
be relevant towards determining where Plaintiff was when Miller shot him means that
such evidence is not proper for rebuttal. Of course, if the evidence were not relevant, it
would not be admissible whether brought in the case-in-chief or in rebuttal. In any
case, Plaintiff can choose not to call Dr. LaPoint as a witness in the case-in-chief. If
expert evidence about where Plaintiff was at the moment Miller shot him is dispositive
and Plaintiff fails to provide an expert witness on this issue, Defendants can certainly
move for judgment as a matter of law at the close of Plaintiff’s case-in-chief. If
Defendants are correct, then the issue of whether Dr. LaPoint can testify as a rebuttal
witness will become moot. Whether Dr. LaPoint can testify as a rebuttal witness will
depend on the case that Defendants offer, and a decision on whether he can testify to
rebut Defendants’ claims is at this point premature.
19

The Court will therefore reserve on that portion of the motion as well.
B.

Plaintiff’s Motions
i.

Motion to Preclude Testimony of Jeffrey Lyness

Plaintiff moves to preclude portions of the Testimony of Dr. Jeffrey Lyness, an
expert offered by the Defendants. Plaintiff seeks to exclude Dr. Lyness’ opinions on
Plaintiff’s alleged malingering, lies and exaggerations. Plaintiff insists that Dr. Lyness
lacks qualifications to testify on PTSD, as he is a specialist in geriatrics. He further
contends that such testimony amounts to opinions on credibility, an issue reserved to
the jury. Moreover, his opinions in those areas amount to mere speculation and are not
based on any scientific data. In the alternative, Plaintiff requests a Daubert hearing to
address these issues.
The Court will deny the motion. Dr. Lyness’ C.V., attached to Defendants’
response to Plaintiff’s motion, indicates that Dr. Lyness currently serves as Senior
Associate Dean for Academic Affairs and Professor of Psychiatry and Neurology at the
University of Rochester Medical Center. See dkt. # 105-1. Dr. Lyness undertook a
postdoctoral fellowship and residency in Psychiatry at Yale University after graduating
from the University of Rochester Medical School. Id. He is certified by the American
Board of Psychiatry and Neurology in both psychiatry and geriatric psychiatry. Id.
Since 2006, he has been a full professor of Psychiatry at the University of Rochester.
Id. While Plaintiff is correct that some of Dr. Lyness’ experience has been in geriatric
psychiatry, Dr. Lyness has also served as an attending psychiatrist at several hospitals.
Id. He is a member of the Genesee Valley District Branch of the American Psychiatric
Association and has served in national psychiatric bodies as well. Id. Indeed, in 2010
20

Dr. Lyness began a 3-year term as a member of the American Psychiatric Association’s
Council on Adult Psychiatry. Id. While many of Dr. Lyness’ numerous presentations
and research grants have addressed psychiatric care for the elderly, he has also
addressed mental illness among patients of all ages. Id.
Dr. Lyness’ C.V. reveals that he possesses the relevant scientific training to
testify as an expert on Plaintiff’s psychological state, an issue on which Plaintiff seeks
damages. See Kumho Tire, 526 U.S. at 141. Dr. Lyness proposes to testify on the
psychological impact of the shooting on the Plaintiff, and his medical training, research
speciality, and professional experience all equip him to make such an evaluation. Dr.
Lyness evaluated Plaintiff as part of the discovery in the case, and his report offers his
conclusions about Plaintiff’s alleged illnesses and symptoms. Thus, Dr. Lyness’s
testimony will assist the trier of fact in determining a question of fact material to the
litigation. The Court will therefore permit the testimony. Plaintiff’s complaints about Dr.
Lyness’s particular conclusions do not address the expert’s qualifications, but represent
argument about the persuasiveness of his testimony. Those complaints are not a basis
to prevent to Dr. Lyness from testifying. The Court will therefore deny the motion.
Plaintiff also argues that Dr. Lyness’ testimony will be used by the Defendants as
a conduit to introduce improper character evidence. The Court finds this portion of the
motion premature, as the Court cannot know how the Defendants will attempt to use his
testimony. The Court will deny that portion of the motion with leave to renew at an
appropriate time during trial.
ii.

Evidence in Hospital Records

Plaintiff next seeks to preclude testimony concerning references in the medical
21

records to various items and statements. He seeks to preclude testimony or redact
portions of the record that reference: gunpowder on him and/or his clothing; testimony
from Defense expert Dr. Terzian on the presence of gunshot residue on Plaintiff’s skin;
foul language used by the Plaintiff at the hospital; and evidence of plaintiff’s marijuana
use. To the extent that Plaintiff actually makes arguments in his brief, he contends that
statements in his medical records–though he does not point to any particular ones in
the brief but instead in a detailed affidavit–are hearsay not subject to any exceptions.
This motion concerns the exclusion of alleged hearsay statements. The Federal
Rules of Evidence define hearsay as “a statement that: (1) the declarant does not make
while testifying at the current trial or hearing; and (2) a party offers for the truth of the
matter asserted in the statement.” FED. R. EVID. 801(c). Hearsay not excepted by a
federal statute, the Federal Rules of Evidence, or other rules is inadmissible. FED. R.
EVID. 802. Plaintiff points to Rule 803(4), which provides an exception for statements
made for medical diagnosis or treatment, and which are used to describe “medical
history; part or present symptoms or sensations; their inception, or their general cause,”
and argues that none of the statements he seeks to exclude fit this rule. FED. R. EVID.
803(4)(B).
First, Plaintiff points to an entry in the hospital records by Mark J. Brennan, DO,
who performed an exploratory laparotomy on Plaintiff after his injury. The record
reports that “[w]e opened the abdominal cavity and found that there was a pretty-good
sized hole with some blast injury and gunpowder around the area.” See dkt. # 103-2.
Plaintiff seeks to exclude any reference to “gunpowder around the area.” Plaintiff
contends that Brennan lacks the knowledge and training to identify the gunpowder and
22

his statement is “speculative and unrelated to diagnosis and treatment of the damaged
spleen” and other internal organs punctured by the bullet. The statement, moreover,
would only confuse the jury and its prejudicial effect outweighs is probative value.
Defendants respond that the note is germane to medical treatment and diagnosis.
Plaintiff ties this portion of the motion with another part of the motion, which seeks to
preclude Defendants’ expert, Dr. Terzian, from testifying about the presence of gunshot
residue on the Plaintiff’s skin. Defendants term this an “extension” of Plaintiff’s earlier
argument regarding Dr. Brennan, since much of Dr. Terzian’s expert testimony on
gunshot wounds grew out of his examination of Dr. Brennan’s records.
It is clear to the Court from the parties’ arguments that resolution of this issue will
depend on how the parties attempt to use the testimony at trial. Whether Dr. Terzian
can testify on certain issues related to gunshot residue depends in part on how the
parties attempt to use Dr. Brennan’s records, and the Plaintiff’s briefing leaves unclear
how such testimony might be introduced and by whom. The Court will therefore
reserve on this issue until an appropriate time at trial.
Plaintiff seeks to preclude introduction of any foul language allegedly used by the
Plaintiff and recorded in the medical records. Defendants respond that the admissibility
of such evidence will depend on the case Plaintiff makes at trial, and whether he puts in
question particular aspects of his character. The Court agrees with the Defendant that
the admissibility of such evidence is best determined during the course of the trial. The
Court will therefore reserve on this issue until the appropriate time at trial.
Plaintiff next seeks to exclude from the medical records any mention of
marijuana use by him. The medical records, Plaintiff’s deposition, and the expert report
23

of Dr. Layness all indicate the Plaintiff has used marijuana. Plaintiff contends that such
evidence is irrelevant and unduly prejudicial.
The Court agrees that marijuana use in general is irrelevant to the issue of
whether Defendants used excessive force or violated Plaintiff’s rights in some other way
on the date in question. At the same time, Plaintiff’s marijuana use may to some
degree be relevant to other aspects of the case, such as damages or Plaintiff’s ability to
perceive or recall the events in question, and the admissibility of such evidence will
depend on events and arguments made at trial. The Court will therefore reserve on this
issue until an appropriate time at trial.
iii.

Omnibus Motion

Plaintiff also filed an omnibus motion in limine that addresses a plethora of
issues. The Court will address each in turn.
a. Apology
Plaintiff seeks to preclude Defendants from offering any apology for Plaintiff’s
injuries. Defendants respond that they do not intent to offer an apology. They seek to
preserve their right, however, to respond if Plaintiff raises the issue of an apology at
trial.
The Court will deny the motion as moot at this point, recognizing that the issue
may be renewed based on the testimony at trial.
b. Preclusion of Testimony About Commendations or Awards
Plaintiff seeks to preclude any testimony concerning commendations or award
earned by the police officer witnesses as impermissible character evidence under
Federal Rule of Evidence 404. Defendants acknowledge that they may not introduce
24

such evidence for proving good character and actions in conformity therewith, but argue
that such evidence is admissible for other purposes. Evidence and argument at trial
may provide grounds for admission of the evidence.
The Court will reserve ruling on this evidence until trial. The admissibility of such
evidence is specific to context of its attempted introduction and must be deferred until
the time of trial.
c. Officers Wearing Medals on their Uniforms
Plaintiff also seeks to preclude the officers who testify from wearing medals on
their uniforms. Plaintiff concedes that the officers may wear their uniforms at trial.
The Court will grant the motion in this respect. The Court finds that, while the
jury would likely not be able to recognize the specific reasons for the award of the
medals, an officer wearing a brace of medals on his uniform while testifying could have
the effect of encouraging the jury to make a decision based on the officer’s appearance
and signified reputation, rather than on the facts of the case. In that sense, wearing the
medals would be unduly prejudicial and precluded by Federal Rule of Evidence 403.
Any officers who testify at trial may wear standard police uniforms, but not any medals
or awards. See Case v. Town of Cicero, No. 10c7392, 2013 U.S. Dist. LEXIS 148656
at *13-14 (N.D. Ill. Oct. 16, 2013) (“Ordinarily, police officers are permitted to wear
uniforms at trial, though medals are potentially prejudicial to the adverse party. The
officers in this case may wear standard police uniforms [but] . . . they may not appear in
bullet-proof vests or other protective gear that may have been worn during the events of
this case. The officers may not wear any medals or awards. They will be permitted to
wear insignia that reflect their rank within the police force.”) (internal citations omitted).
25

d.

Risks of Police Work

Plaintiff seeks to prevent testimony from officers concerning the risks of police
work, such as statements that “police officers risk their lives every day.” He contends
that such statements are irrelevant and unduly prejudicial.
The Court will reserve ruling on this motion until an appropriate time at trial. The
Court recognizes that the issues in this case, which concern in part whether shooting
the defendant was reasonable from the perspective of an ordinary police officer in
Defendant Miller’s position, may necessarily discuss the dangers that an officer in his
position might face. At the same time, testimony elicited solely to illicit the sympathy of
jurors about the difficult task officers face could encourage jurors to make a decision
based on something other than the facts of the case. This motion is therefore best
decided at trial.
e.

Budgetary Constraints

Plaintiff next seeks to preclude any argument or testimony that the policies and
procedures of the Binghamton Police Department are a result of the City’s limited
budget. Plaintiff argues that Police cannot excuse their own negligence or
constitutional violation on a lack of funds.
The Court will likewise reserve on this motion until time of trial. Whether
Defendants could introduce evidence on the budgetary constraints faced by the City will
depend on the testimony at trial, including Plaintiff’s arguments. If Plaintiff argues that
Defendants violated the standard of care by negligence by failing to engage in a milliondollar surveillance operation before executing the warrant, for instance, Defendants
may have cause to argue that budgetary constraints make such action impossible.
26

f.

Taxpayer Liability or Higher Taxes

Plaintiff seeks to exclude any testimony or evidence or argument that taxpayers
will have to pay for any damages assigned to Defendants. Defendants respond that
they do not intend to introduce such information but ask the Court to reserve on this
issue until trial.
For the reasons explained above with respect to the issue of indemnity,
argument about how damages are paid is not relevant to the issues before the Jury.
The Court will therefore grant the motion with respect to Defendants introducing any
evidence, testimony, or argument about the financial consequences of a Plaintiff’s
verdict for the City or taxpayers in the City.
g.

Plaintiff’s Criminal History

Plaintiff seeks to preclude testimony from the Defendants on his criminal history.
Federal Rules of Evidence 609 provides in relevant part that:
(a)(1) for a crime that, in the convicting jurisdiction, was punishable by
death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a
criminal case in which the witness is not a defendant; and
...
(B) for any crime regardless of the punishment, the evidence must
be admitted if the court can readily determine that establishing the
elements of the crime required proving–or the witness’s
admitting–a dishonest act or false statement.
(b) [if more than ten years have passed since conviction or release from
jail the evidence is admissible if]
(1) the probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect[.]
FED. R. EVID. 609. The rule “gives broad discretion to the trial judge” and the court is to

27

consider “many factors[.]” United States v. Ortiz, 553 F.2d 782, 784 (2d Cir. 1977).
“Prime among them is whether the crime, by its nature, is probative of a lack of
veracity.” Id. “Though in some cases felony drug convictions may bear on a witness’s
credibility, a court must examine the facts involved in the convictions to determine
whether the prior convictions are probative as to the witness’s truthfulness.” Nibbs v.
Goulart, 822 F.Supp.2d 239, 343 (S.D.N.Y. 2011)
Plaintiff admits that he was convicted in cases involving controlled substances in
2004 and 1999, and contends that other crim inal conduct may also be raised by
Defendants. Defendants provide more detail on the convictions.
1. Prior Convictions Older than 10 Years Old
First, Defendants point to a 1996 conviction for criminal possession of a
controlled substance in Connecticut. Plaintiff was sentenced to 32 months and
released from prison in 1999. Defendants admit that this conviction is older than ten
years, but argue that “should Plaintiff take the stand its impeachment value would be
high.” Defendants do not attempt to explain why, and do not point to any facts and
circumstances of that arrest. The Court will grant the motion with respect to this
conviction, as Defendants have not pointed to any probative value of the arrest on
Plaintiff’s credibility, other than to claim he could be impeached with it. The Court finds
that their probative value does not substantially outweigh the prejudicial effect of
bringing up a 17-year-old drug arrest. The purpose of its introduction would only be to
suggest that Plaintiff is a criminal and therefore undeserving of consideration by the
jury.
Defendants argue that a second arrest, which occurred in 2004 and resulted in a
28

prison sentence that terminated in March, 2006 should be considered under the second
part of the rule, because his release occurred barely more than 10 years ago and “[b]ut
for the number of extension of discovery deadlines and the necessary rescheduling of
this trial,” the conviction would have fallen within the 10-year window. The Court cannot
accept this position, as the Rule is clear that subdivision (b) applies “if more than 10
years have passed since the witness’s conviction or release from confinement” for the
offense, whichever is later. More than ten years have passed.
Defendants assert that the second conviction, for criminal possession of a
controlled substance, should be admissible because at the time of his arrest he gave an
alias, which points to a lack of credibility. No charges were filed as a result of that
allegedly false statement. The Court finds that the facts and circumstances of the
arrest do not make the probative value of the conviction substantially outweigh the
prejudicial effect. The only conceivable means by which the conviction’s probative
value might outweigh its prejudicial effect would be if the conviction somehow involved
use of a false name. That might demonstrate a tendency to lie. The single conviction
in this case, however, was not for using an alias, but for having a controlled substance.
In the end, the Defendant did not admit to any charges on the false-name charge, and
admitting the conviction would thus serve only to encourage the jury to find against the
Plaintiff because of his criminal history. The motion will be granted in this respect as
well.
2. Newer Involvement with Police
Defendants also seek to introduce evidence of two traffic stops. One occurred in
May of 2012, when Defendants contend “Plaintiff was ticketed for operating a vehicle
29

without a valid inspection and operating a vehicle without emissions inspection.”
Plaintiff pled guilty. In April, 2013, Plaintiff was ticketed for driving 20 miles over the
speed limit and driving with revoked or suspended privileges. Sometime in 2013,
Defendants relate that Plaintiff was a passenger in a stopped vehicle and found to have
22 hydrocodone tables and more than $5000 in suspicious currency. Defendants admit
that any charges against Plaintiff were dismissed, though plaintiff forfeited the property
in a civil proceeding.
Evidence of this criminal involvement is clearly inadmissible under Rule
609(a)(1)(B). Defendants do not even attempt to assert that traffic tickets are
punishable by more than a year in jail (they don’t even cite the jurisdiction where the
second ticketing occurred), and they do not cite anything in either statute which would
establish that an element of a traffic ticket requires demonstrating a dishonest act or a
false statement. The third incident does not even involve a conviction. As such,
Plaintiff’s motion will be granted in this respect.
Of course, Defendants may attempt to introduce the evidence of the conviction
for some other valid purpose if one arises at trial.
h.

Plaintiff’s Financial Status

Plaintiff seeks to preclude any testimony on Plaintiff’s employment or financial
status, such as whether he has received government aid. Defendants respond that
they should be able to question Plaintiff on these issues if his testimony makes them
relevant.
The Court finds that the relevancy of Plaintiff’s financial and employment status
will depend on the testimony at trial. The Court will reserve ruling the motion until an
30

appropriate time at trial.
i.

Collateral Sources

Plaintiff next argues that Defendants should be precluded from introducing any
evidence of insurance payments, public aid or other collateral-source payments for his
medical bills. Defendant agrees that such evidence may not be admitted to mitigate
damages, but that it may be admitted for other purposes, particularly if the Plaintiff puts
his financial status at issue.
The Supreme Court has noted that the ability to receive “collateral social
insurance benefits involves a substantial likelihood of prejudicial impact” on a plaintiff
seeking to recover damages for disability. Eichel v. New York Cent. R. Co., 375 U.S.
253, 255 (1963). Courts have precluded evidence of collateral benefits as unduly
prejudicial. See Steinherr v. CSX Transp. Inc., 2011 U.S. Dist. LEXIS 141114 at *5
(N.Y.N.Y. ) (citing Sheehy v. S. Pac. Transp. Co., 631 F.2d 649 (9 th Cir. 1980); Finley v.
Nat’l R.R. Passenger Corp., 1 F.Supp.2d 440, 443 (E.D. Penn. 1998); Edsall v . CSX
Transp., Inc., 2008 U.S. Dist. LEXIS 6247, 2008 WL 244344, at *2 (N.D. Ind. 2008);
Davis v. CSX Transp., Inc., 2008 U.S. Dist. LEXIS 108204, 2008 WL 2117151, at *2
(E.D. Tenn. 2008); Prater v. Consol. Rail. Corp., 272 F.Supp.2d 706, 716 (N.D. Ohio
2003). At the same time, however, courts have found that evidence of collateral
benefits could be admitted for other purposes, particularly if the plaintiff puts his
financial status at issue. Steinherr, 2011 U.S. Dist. LEXIS 141114, at *8.
The Court will adhere to that practice here. The Court will grant the motion with
respect to Defendants introducing collateral sources to prove that Plaintiff is not entitled
to recover for his losses from his injuries. Defendants may seek to introduce such
31

evidence, however, if Plaintiff puts his financial condition at issue, particularly if
Defendants have evidence that collateral sources have paid medical bills that Plaintiff
claims he owes.
j.

“Anyone Can File a Lawsuit”

Plaintiff seeks to preclude Defendants from arguing or implying that Plaintiff filed
his lawsuit for frivolous reasons, simply because anyone can get access to the Courts.
Defendants respond that they agree that argument about past lawsuits and
litigiousness is generally inadmissible. They contend that there is no evidence to be
admitted of past lawsuits, and then contend that “the motion should be denied as
moot.” Defendants appear to acknowledge that they do not intend to raise the issue
and could not even if they intended to.
The Court will grant the motion as unopposed. The parties appear to agree on
the legal principles involved, and the Defendants appear to assert that they will not
raise the issue.
k.

Financial Motivation

Plaintiff argues that Defendants should be precluded from introducing evidence
or argument alleging that Plaintiff’s motive for filing the lawsuit was a purely pecuniary
one. Defendants ask the Court to reserve on the motion, as evidence at trial may make
such argument appropriate.
The Court agrees with the Defendants and will reserve on ruling. Evidence at
trial may make such argument admissible. Plaintiff may raise the issue again at an
appropriate time during trial.
l.

Items in Plaintiff’s Possession When he Was Shot
32

Plaintiff had in his possession approximately $1700 cash, a blackberry smart
phone, and his identification at the time Officer Miller shot him. Plaintiff seeks to
preclude introduction of these items into evidence, arguing that the items are irrelevant
and will serve only to imply to the jury that Plaintiff was involved in some sort of criminal
activity, leading to undue prejudice. Defendants argue that the admissibility of the
evidence depends on other testimony at trial.
The Court will reserve on this motion until an appropriate time at trial. Plaintiff’s
evidence and testimony at trial may raise an issue that makes the evidence admissible.
Plaintiff may raise the issue again at an appropriate point.
m.

Use of Alcohol, Marijuana, and other non-Prescription
Drugs

Plaintiff seeks to preclude admission of any evidence, testimony or argument
that he or any other witness has used drugs. He argues that evidence of alcohol,
marijuana, or other non-prescribed drugs by Plaintiff or any other witness would have
little probative value and only a prejudicial effect. He seeks to exclude any mention of
his use or possession of alcohol or drugs either prior to or after the date in question.
Defendants respond that there is evidence that Plaintiff used marijuana before the
incident, and that his testimony may open him to questions about drug use at other
times.
For the reasons stated with reference to the mention of drugs in the medical
records, the Court will reserve ruling on this issue until an appropriate point at trial.
n.

Plaintiff’s Marital/Paternal Status

Plaintiff seeks to preclude evidence or testimony about his marital and/or

33

parental status. Defendants assert that they do not intend to raise this issue unless
Plaintiff “opens the door” by misrepresenting facts about his status.
The Court will grant motion as moot with leave to renew if the issue arises during
the trial.
o.

Failure to Mitigate Defense

Plaintiff contends that Defendants should be precluded from raising the
affirmative defense that he has failed to mitigate his damages. He contends that expert
testimony is necessary to prove such a defense. Defendants respond that Plaintiff’s
own medical records and testimony from his doctors indicate that he has not mitigated
his damages, and that argument to that respect is permitted.
Plaintiff is correct that “[i]n order to show a failure to mitigate damages evidence
of the failure must first be admissible.” Pierce v. F.R. Tripler & Co., 955 F.2d 820, 826
(2d Cir. 1992). Plaintiff’s argument here goes to the weight of the evidence that shows
he failed to mitigate his damages, not its admissibility. Defendants contend they can
prove that Defendant’s failure to mitigate through his own physicians. Plaintiff does not
dispute the admissibility of this evidence. The argument will therefore be denied with
leave to renew at an appropriate time.
p.

Preclusion of Criminal Records of Certain Witnesses

Plaintiff contends that Defendants intend to introduce evidence of the criminal
histories of two potential witnesses, Michael Pride and Milagros Gonzalez. He asserts
that introduction of their criminal histories will unduly prejudice his case, causing jurors
to associate him with criminals and to decide the case for the wrong reasons.
Defendants respond that the purpose of introducing any evidence of Michael Pride’s
34

criminal history would serve the purpose of establishing the facts and circumstances
known by officers when they entered the apartment.
The Court will deny the motion in this respect. In terms of Plaintiff’s excessive
force claim, a central question is what the officers who entered the apartment knew
about the persons residing there, as those facts and circumstances help explain what
was reasonable under the circumstances. To the extent that Defendants seek to
introduce the evidence for that purpose, the Court finds that its probative value
outweighs its prejudicial effect. Likewise, Defendants do not argue that they seek to
introduce any evidence of Milagros Gonzalez’s criminal history. The motion will be
granted as unopposed with respect to her. Plaintiff may renew the motion if Defendants
seek to introduce the evidence for another purpose.
q.

Contraband Discovered at the Scene

Plaintiff seeks to preclude introduction of evidence that drugs or drug
paraphernalia were recovered at the scene of the incident. Such evidence, he insists,
is unduly prejudicial. Defendants respond that the warrant in question sought such
items, and that testimony about the items in question would be admissible both to refute
any claims to the contrary by Plaintiff and to establish the circumstances confronted by
Officer Miller.
While the Court notes that evidence about contraband found after Officer Miller
shot Plaintiff hardly qualifies as evidence to establish the facts and circumstances
known to him at the time of the shooting, the Court agrees with the Defendants that
such evidence could be relevant to dispute claims made by the Plaintiff about the scene
when Miller shot him.
35

The Court will therefore reserve on the motion until an appropriate time at trial.
r.

Characterization of the Neighborhood as a “High Crime”
Area

Plaintiff argues that Defendants should be precluded from referring to the
neighborhood where the events in question occurred as a “high crime” area, a “drug”
area, or a “gang” area. He contends that such evidence would be highly prejudicial and
not probative of anything important to the case.
The Court disagrees that the nature of the area where officers executed the
warrant is immaterial to the case. One question in this matter is whether a reasonable
officer in Miller’s position would have used the force he did. Testimony about the area
in question would help establish the circumstances under which officers executed the
warrant and thus would help resolve an important material fact. The motion will be
denied in this respect.
s.

Testimony Concerning the Victoria Café

Plaintiff seeks to preclude testimony concerning the legal status of the Victoria
Café, an apparently illegal club where Plaintiff and Michael Pride had visited the night
before the incident in question. He argues that there is no evidence he knew of that
status, and such status is irrelevant to the facts at issue in this case. Defendants
contend that they do not intend to offer any testimony on this issue, but argue that the
information may become useful depending on the testimony at trial.
The Court will grant the motion. The issue of the legal status of Victoria’s Café is
irrelevant to any fact of consequence to the litigation. No testimony indicates that
Plaintiff knew of that status, or that officers used information about Victoria’s Café in

36

preparing to execute the warrant. Of course, if Plaintiff somehow opens the door to
making such information relevant, Defendants may seek to introduce such evidence.
t.

Use of Force Policies and Procedures

Plaintiff has informed the Court that he withdraws this portion of the motion. The
Court will therefore deny the motion as withdrawn.
u.

Internal Affairs Findings/Determinations/Reviews

Plaintiff seek to preclude introduction or testimony about the City of Binghamton
Police Department’s internal review of the events in question. They argue that they
were conducted after the fact, and are self-serving, cumulative and serve only to bolster
the Departments’ claims about the event. As any report was assembled after the fact,
its probative value is minimal. Defendants respond that Plaintiff has failed to identify
which document or documents the motion refers to, and thus they cannot fully respond.
The Court finds that the Plaintiff has failed to identify specific portions of the
investigation that may be inadmissible, and that at this point in the litigation the Court
cannot know whether circumstances would dictate that the report could be used to
impeach a witness, question a witness, or serve some other legitimate purpose. The
Court cannot find that the report could never be admissible. Given this status, the
Court will reserve on this motion until an appropriate time at trial.
III.

Conclusion
For the reasons stated above, the Court will GRANT the parties motions in limine

in part and DENY them in part, as follows:
1. The Defendants’ motion in limine, dkt. # 101, will be GRANTED in part
RESERVED in part, and DENIED in part:
37

a. The motion is RESERVED with respect to any attempt by
Plaintiff to introduce evidence from investigations and civil
complaints against Binghamton Police Officers;
b. The motion is GRANTED with respect to any evidence of police
procedures introduced to prove that Defendant Miller violated
Plaintiff’s constitutional right to be free of excessive force;
c. The motion is GRANTED with respect to the introduction of any
evidence by Plaintiff in his case-in-chief that any party is
indemnified against a verdict;
d. The motion is GRANTED with respect to the introduction of any
evidence or argument regarding a specific amount of damages for
Plaintiff for pain and suffering;
e. The motion is RESERVED with respect to the preclusion of the
testimony of Dr. Scott LaPoint until after the Court can conduct a
Daubert hearing at trial; and
f. The motion is DENIED in all other respects.
2. The Plaintiff’s motion in limine to preclude the testimony of Dr. Jeffrey
Lyness, dkt. # 102, is hereby DENIED;
3. The Plaintiff’s motion in limine to preclude certain evidence in hospital
records, dkt. # 103, is hereby RESERVED until an appropriate time at
trial;
4. The Plaintiff’s omnibus motion in limine, dkt. # 104, is hereby
GRANTED in part, RESERVED in part, and DENIED in part, as follows:
38

a. Plaintiff’s motion to preclude Defendants from offering an
apology at trial is DENIED as moot, with leave to renew if
appropriate at trial;
b. Plaintiff’s motion to preclude testimony about commendations
and awards is hereby RESERVED;
c. Plaintiff’s motion to preclude officers from wearing medals on
their uniforms at trial is hereby GRANTED. Officers testifying
should wear standard police issue uniforms at trial. They may not
testify in bullet-proof vests or other protective gear, and may not
wear any medals or awards. Officers may wear insignia that
reflects their rank within the police force;
d. Plaintiff’s motion to preclude any testimony or evidence on the
risks of police work is hereby RESERVED;
e. Plaintiff’s motion to preclude any testimony or evidence on
budgetary constraints facing the City of Binghamton and the
Binghamton Police Department is hereby RESERVED;
f. Plaintiff’s motion to preclude any testimony, evidence or
argument that taxpayers will have to pay for any verdict for the
Plaintiff is hereby GRANTED;
g. Plaintiff’s motion preclude any testimony, evidence or argument
about his criminal history pursuant to Federal Rule of Evidence 609
is hereby GRANTED;
h. Plaintiff’s motion to preclude any testimony, evidence or
39

argument regarding his employment or financial status is hereby
RESERVED;
i. Plaintiff’s motion to preclude mention of collateral sources is
hereby GRANTED with leave to renew if Plaintiff puts his financial
status properly in issue;
j. Plaintiff’s motion to preclude Defendants from arguing or
implying that Plaintiff filed his lawsuit for frivolous reasons (“Anyone
can file a lawsuit”) is hereby GRANTED as unopposed;
k. Plaintiff’s motion to preclude Defendant’s from arguing that
Plaintiff had a purely financial motive for bringing his lawsuit is
hereby RESERVED;
l. Plaintiff’s motion to preclude introduction of the items recovered
from him at the time of the incident is hereby RESERVED;
m. Plaintiff’s motion to preclude evidence, testimony or argument
that he or any other witness has used drugs or alcohol is hereby
RESERVED;
n. Plaintiff’s motion to preclude evidence, testimony or argument
regarding his marital and parental status is hereby GRANTED with
leave to renew;
o. Plaintiff’s motion to preclude evidence, testimony or argument
regarding Plaintiff’s failure to mitigate his damages is hereby
DENIED with leave to renew;
p. Plaintiff’s motion preclude evidence of the criminal histories of
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Michael Pride and Milargos Gonzales is hereby GRANTED as
unopposed with respect to Gonzales and DENIED with respect to
Pride;
q. Plaintiff’s motion to preclude evidence of the contraband seized
at the scene is hereby RESERVED;
r. Plaintiff’s motion to preclude characterization of the
neighborhood in question as a high-crime neighborhood is hereby
DENIED;
s. Plaintiff motion to preclude testimony concerning the legal status
of the Victoria Café is hereby GRANTED;
t. Plaintiff’s motion to preclude testimony on the use of force
procedures used by the Binghamton Police is hereby DENIED as
withdrawn; and
u. Plaintiff’s motion to preclude testimony about Internal Affairs
investigations of the events in question is hereby RESERVED.

IT IS SO ORDERED.

Dated: September 16, 2016

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