Schoolcraft v. The City Of New York et al

Filing 535

MEMORANDUM OF LAW in Opposition re: 528 MOTION in Limine to exclude certain evidence at trial - Correcting the Deficient Docket Entry Number 492. . Document filed by Jamaica Hospital Medical Center. (Osterman, Brian)

BSO/lmt
82-82153

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
•X

ADRIAN SCHOOLCRAFT,
Plaintiff,
-against10 CIV 6005 (RWS)
THE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL
MARINO, Tax Id. 873220, Individually and in his Official
Capacity, ASSISTANT CHIEF PATROL BOROUGH
BROOKLYN NORTH GERALD NELSON, Tax Id. 912370,
Individually and in his Official Capacity, DEPUTY
INSPECTOR STEVEN MAURIELLO, Tax Id. 895117,
Individually and in his Official Capacity CAPTAIN
THEODORE LAUTERBORN, Tax Id. 897840, Individually
and in his Official Capacity, LIEUTENANT JOSEPH GOFF,
Tax Id. 894025, Individually and in his Official Capacity, SGT.
FREDERICK SAWYER, Shield No. 2576, Individually and in
his Official Capacity, SERGEANT KURT DUNCAN, Shield
No. 2483, Individually and in his Official Capacity,
LIEUTENANT CHRISTOPHER BROSCHART, Tax Id.
915354, Individually and in his Official Capacity,
LIEUTENANT TIMOTHY CAUGHEY, Tax Id. 885374,
Individually and in his Official Capacity, SERGEANT
SHANTEL JAMES, Shield No. 3004, AND P.O.’s "JOHN
DOE" #1-50, Individually and in their Official Capacity (the
name John Doe being fictitious, as the true names are presently
unknown) (collectively referred to as "NYPD defendants"),
JAMAICA HOSPITAL MEDICAL CENTER, DR. ISAK
ISAKOV, Individually and in his Official Capacity, DR.
LILIAN ALDANA-BERNIER, Individually and in her Official
Capacity and JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEE'S "JOHN DOE" # 1-50, Individually and in their
Official Capacity (the name John Doe being fictitious, as the
true names are presently unknown),
Defendants.
X

MEMORANDUM OF LAW IN OPPOSITION
TO THE PLAINTIFF’S MOTION IN LIMINE
Of Counsel:

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William P. Brady (WPB- 7686)
Gregory J. Radomisli (GJR- 2670)
Brian Osterman (BO- 5881)

PRELIMINARY STATEMENT
This Memorandum of Law is respectfully submitted on behalf of defendant
JAMAICA HOSPITAL MEDICAL CENTER (“JHMC” or “Jamaica Hospital”) in opposition
to the Plaintiffs Motion in Limine. At the outset, it must be noted that plaintiffs Motion
seeks to preclude various evidence, reference, testimony, or claims as to the City Defendants
and Defendant Mauriello, who are no longer a part of this case as it proceeds, and does not
address Jamaica Hospital or the other medical defendants. Accordingly, plaintiffs arguments
and accompanying case law are not relevant as to Jamaica Hospital and the medical
defendants. Indeed, nearly all of plaintiffs plethora of citations deals with police officers and
police decisions, and is therefore inapplicable to Jamaica Hospital.
PLAINTIFF’S ARGUMENTS I - III. V - VII. X AND XV ARE NOT RELEVANT
AND SHOULD BE DISREGARDED
Plaintiffs Arguments I - III, seeking to determine the standard of relevancy, exclude
evidence plaintiffs racial slurs, and exclude reference to plaintiffs prior lawsuits, Plaintiffs
Arguments V - VII, seeking to preclude evidence of the plaintiffs disciplinary history, lAB
findings, and the Queens District Attorney’s Office, and Plaintiffs Arguments X and XV,
seeking to exclude Defendant Mauriello’s experience and charge the jury regarding the City
Defendants’ spoliation of evidence are directed only at the City Defendants and Defendant
Mauriello and are therefore not relevant as these parties are no longer a part of this matter.
Furthermore, Plaintiffs Argument VIII pertaining to plaintiffs expert in police procedure Dr.
John Eterno is also no longer relevant to this matter as it proceeds because Dr. Eterno’s
analysis was confined to the procedures of the City Defendants, only. Accordingly, these
aspects of plaintiffs motion should be disregarded and/or denied.

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PLAINTIFF’S ARGUMENT XIII SHOULD BE DENIED BECAUSE THE COURT
HAS ALREADY RULED THAT DR, HALPREN-RUDER IS PRECLUDED FROM
TESTIFYING AT TRIAL

Plaintiffs Argument XIII pertains to Dr. Halpren-Ruder.

The Court has already

preeluded Dr. Halpren-Ruder from testifying at trial and denied plaintiffs Motion to
reconsider its decision. As such, Dr. Halpren-Ruder is not permitted to testify at trial and this
aspect of plaintiffs Motion should be disregarded and/or denied.
EVIDENCE OF THE RIFLE FOUND IN PLAINTIFF’S APARTMENT IS
RELEVANT AND BUTTRESSES THE LEGITIMACY OF DR. ALDANABERNIER’S DETERMINATION AND PLAINTIFF’S ARGUMENT IV SEEKING TO
EXCLUDE IT SHOULD BE DENIED
Plaintiff argues that presenting evidence of the rifle found in the plaintiffs apartment
is irrelevant because it did not contribute to the decision to enter the plaintiffs home on
October 31, 2009. Notably, however, plaintiff does not address the relevance as it applies to
the medical staff and personnel at Jamaica Hospital, presumably because plaintiff is aware
that such evidence is of paramount importance in assessing whether the plaintiff was a danger
to himself or others, as will be required at trial. Indeed, at no point does plaintiff argue that
this evidence is irrelevant as to the decisions made by the medical defendants in treating the
plaintiff. It would be prejudicial to the defense of the medical defendants to exclude this
evidence, as it goes toward the consideration of whether the plaintiff was a danger at the time
he presented to Jamaica Hospital.
The presence of the rifle further reveals the legitimacy of Dr. Aldana-Bernier’s
determination that the plaintiff was a potential danger. Dr. Aldana-Bernier testified at her
deposition that one of the factors she considered in her determination was that as a police
officer the plaintiff had increased access to guns, regardless of whether his service weapon
was taken away by the NYPD pursuant to the order of a department psychiatrist. See, e.g. Dr.
Aldana-Bernier Dep. Tr. (Feb. 11, 2014) pp. 149-150, 196-197, 214. Additionally, Dr. AldanaBernier testified that as an emergency room doctor one of the factors she has to consider in
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assessing whether a patient is a potential danger to others is the presence of weapons, and one
reason to stabilize a patient is to limit that individual’s access to weapons as physicians ought to
ascertain whether a patient has access to weapons. Id. pp. 198, 219. The presence and access to
weapons played a role in the decision to involuntarily commit the plaintiff as well as the treatment
he would receive as a result of stabilization. All of the medical defendants would therefore be
prejudiced if such a vital factor in the assessment of whether the plaintiff was a danger were to be
excluded at trial.
Plaintiff further avers that presenting this evidence would delay what was originally
assumed to be a lengthy trial by creating a mini-trial as to the propriety of the plaintiffs
possession of the gun. This argument fails, however, as the medical defendants will not seek
to address the propriety of the possession but rather that its presence is relevant as to the
determination of whether the plaintiff was a danger to himself or others. Moreover, with the
absence of the City Defendants and Defendant Mauriello, and the multitude of claims
pertinent only to them, the length of this trial is no longer of such concern.
THE MCGUGAN CASE AND DR. BERNIER’S DEPOSITION TESTIMONY ARE
BOTH RELEVANT AND IT IS IMPROPER TO ATTEMPT TO PRECLUDE THESE
ASPECTS OF LAW AND TESTIMONY AS REQUESTED IN PLAINTIFF’S
ARGUMENT IX
Plaintiff seeks to prevent defendant Dr. Aldana-Bernier from referring to the case of
McGugan v. Aldana-Bernier, 752 F.3d 224 (2d Cir. 2014) and speculates that Dr. AldanaBernier may attempt to utilize this case to show that her actions in the present case are within
the standard of care.

While not endorsing Dr. Aldana-Bernier, or any other party, from

relying upon McGugan to obtain immediate vindication in this case, the parties should be
entitled to utilize the holdings of the case on various points of law, if applicable, and it is
improper for plaintiff to attempt to prevent a party from relying on appropriate legal
precedent.

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Plaintiff also undertakes to preemptively preelude Dr. Aldana-Bernier from testifying
at trial as to a statement made at her deposition about the “Navy Yard Disaster” because
plaintiff does not know what she meant by the reference during her deposition testimony and
subsequently could not find a corresponding media reference. It was plaintiff, however, who
was questioning Dr. Aldana-Bernier during her deposition when she made reference to the
“Navy Yard Disaster,” and in the eight hours and three hundred and twenty-five pages of
testimony, plaintiff did not once ask a follow-up question of Dr. Aldana-Bernier to ascertain
the details that he now protests are unclear. Plaintiffs failure to fully explore aspects of Dr.
Aldana-Bernier’s testimony at the time of her deposition does not permit plaintiff to now seek
to preclude Dr. Aldana-Bernier from testifying as to these aspects at trial.
Since Dr. Aldana-Bernier will testify at trial, if any party, including the plaintiff, talces
issue with her testimony, the appropriate remedy would be to Move to Strike at that time. For
the plaintiff to seek to preclude Dr. Aldana-Bernier from testifying to something at trial that
she has only referenced at her deposition is premature and improper. Upon offering her
testimony at trial, the parties are free to move to strike aspects of it at that time if they believe
the testimony is somehow improper.
PLAINTIFF’S ARGUMENT XI SEEKING TO EXCLUDE ALL MEDIA SOURCES IS
PREMATURE AND OVERLY BROAD
Plaintiffs efforts to exclude, directly and indirectly, any reference to or admission of
any media coverage of any kind prior to any party’s attempt to introduce or refer to it, is
premature, indiscriminate, and overly broad. As plaintiff acknowledges, “there is no way to
predict what manner any of this information might potentially be used at trial”.

It is

submitted, however, that it may be necessary for impeachment purposes or to evaluate
credibility. As plaintiff is well aware, he and his team have been exceedingly cooperative
with the media, and he has often been directly quoted in articles and books. Some media
accounts even contain direct excerpts of the plaintiff talking and describing the events at issue
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in this lawsuit. While plaintiff is correct that as a general rule media reports constitute
inadmissible hearsay, there are exceptions, and it would be imprudent and premature to
unilaterally designate any potential reference to or admission of a media source as
inadmissible hearsay, before any party has even sought to utilize it and without consideration
as to whether it may in fact present an exception and/or be admissible.

WITNESS EXAMINATIONS SHOULD NOT BE LIMITED AS REQUESTED IN
PLAINTIEE’S ARGUMENT NUMBER XIV BECAUSE THE PARTIES’ INTERESTS
ARE SEPARATE AND DISCTINCT AND CONCERN EOR A LENGTHY TRIAL
HAS BEEN MITIGATED
Plaintiff seeks to limit the defendants from separate examinations of the witnesses
called at trial for fear of a lengthy and confusing trial. In support of his application to prevent
the majority of defendants from conducting their own examinations of witnesses, plaintiff has
cited a number of cases that plaintiff avers uphold the tenet that the trial judge retains
discretion to limit cross-examination.

The cases cited by plaintiff in support of his

application, however, do not stand for the proposition he claims. United States v. Owens,
does not involve multiple attorneys for various defendants. 263 F.2d 720, 722 (2d Cir. 1959).
United States v. Crosby, 294 F.2d 928, 944 (2d Cir. 1961), does not contain the language
quoted by plaintiff and concerned a claim by only 1 of 9 defendants that he was denied the
opportunity to question a witness. Further, in the decision there were no details provided to
indicate the extent to which he was denied the opportunity to question. In Jones v. Berry, 80
F.2d 670, 673 (2d Cir. 1989), the Second Circuit actually found that the questioning was
erroneously eurtailed, but that the error was harmless. The questioning limited in United
States V. Rahme, 813 F.2d 31, 37 (2d Cir. 1987), concerned the maximum sentence an
informant was eligible to receive in the absence of a cooperation agreement. The Second
Circuit also found that defendant was denied due process as a result of the trial court putting a
time limit on cross-examination time in In re Peters, 642 F.3d 381, 389 (2d Cir. 2011).

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Moreover, plaintiff does not cite a single case that holds for a consolidating the right
to exam a trial witness by only one of the parties, under the assumption that the excluded
parties’ interests are aligned, before the trial had even begun, as plaintiff now seeks. The
remaining medical defendants in this case have unique roles in the events at issue in this
matter, and their concerns and interests are separate and distinct from one another. While trial
counsel for Dr. Aldana-Bernier and Dr. Isakov are both very capable attorneys, it would be
prejudicial to the defense of Jamaica Hospital to have to rely on their examination of a
witness and be unable to conduct our own examination. Moreover, such a request deprives
the parties of their Constitutional right to counsel of their choosing.
Plaintiffs concern for potential overlap or repetition in each party’s examination is
unwarranted and without merit. More than 50 depositions have taken place in the course of
discovery.

At each of these depositions, the defendants were represented by their five

separate attorneys. At no point, however, did plaintiffs concern for overlap or repetition
transpire.

The consistent conduct of the attorneys for the defendants at these numerous

depositions confirms that there is no need for concern as to this possibility.
This potential concern is further mitigated by the recent reduction in the parties and
the scope of the trial of this matter.

Plaintiffs Motion was filed prior to the plaintiffs

acceptance of the City Defendants’ and Defendant Mauriello’s Rule 68 Offer of Judgment,
when the defendants were represented by five separate attorneys and the issues to be tried
spanned a period of years and multiple events. With plaintiffs acceptance of the Rule 68
Offer, the City Defendants and Defendant Mauriello, their attorneys, and the multitude of
claims directed against them, are no longer a part of this trial.
Plaintiffs concerns are also, once again, premature. To preemptively limit the parties’
rights to examine various witnesses at trial because of the possibility that repetition or overlap
might occur is prejudicial to the remaining medical defendants. Should such a circumstance

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materialize at trial, the Judge maintains discretion to remedy and determine at that time if
limiting the examinations is appropriate.
CONCLUSION
For the foregoing reasons, it is respectfully requested that this Court deny the above
parts of plaintiffs Motion in Limine, together with such other and further relief as this Court
deems just and proper.
Dated: New York, New York
October 5, 2015
Respectfully submitted.
Martin Clearwater & Bell LLP
By:
Briah OStermaiffBSO 5881)
Attorneys for Defendant
JAMAICA
HOSPITAL
MEDICAL
CENTER
220 East 42nd Street
New York, NY 10017
[phone]

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