Schoolcraft v. The City Of New York et al
Filing
539
MEMORANDUM OF LAW in Opposition re: 515 SECOND MOTION in Limine to preclude testimony related to plaintiff's purported declaratory judgment claim., 517 MOTION in Limine to preclude testimony from Dr. Roy Lubit., 525 SECOND MOTION in Limine to preclude any testimony regarding DJ action., 513 FIRST MOTION in Limine to preclude testimony from plaintiff's expert Dr. Roy Lubit., 506 FIRST MOTION in Limine to preclude expert from testimony about PTSD. . Document filed by Adrian Schoolcraft. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Smith, Nathaniel)
UNITED STATES DISTRICT COURT SOUTHERN
DISTRICT OF NEW YORK
---------------------------------------------------------------x
ADRIAN SCHOOLCRAFT,
10–cv-6005 (RWS)
Plaintiff,
-againstTHE CITY OF NEW YORK, et al.,
Defendants.
--------------------------------------------------------------x
PLAINTIFF’S MEMORANDUM OF LAW
IN OPPOSITION TO THE MEDICAL DEFENDANTS’
MOTIONS IN LIMINE
Nathaniel B. Smith
John Lenoir
100 Wall Street – 23rd Floor
New York, New York 10005
212-227-7062
natbsmith@gmail.com
Law Offices Of Jon L. Norinsberg
225 Broadway, Suite 2700
New York, New York 10007
(212) 791-5396
Cohen & Fitch, LLP
Gerald Cohen
Joshua Fitch
225 Broadway, Suite 2700
New York, New York 10007
(212) 374-9115
Dated: October 12, 2015
2
TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................... 5
ARGUMENT ................................................................................................................. 6
1. Dr. Lubit’s Diagnosis Is Admissible. ...................................................................... 6
2. Evidence on the Declaratory Judgment Claim is Admissible. .............................. 16
3. A Specific Dollar Amount Can Be Reference To The Jury .................................. 20
4. The Court Has No Authority to “Compel” the Plaintiff to “Make”
His Father Available for Trial and The Request For A Missing
Witness Charge Is Premature………………………………………………. ........... 23
CONCLUSION ............................................................................................................ 25
TABLE OF AUTHORITIES
Cases
Amorgianos v. Amtrak, 303 F.3d 256 (2d Cir 2002) ...................................................... 7
Bachir v. Transoceanic Cable Ship Co., 2002 U.S. Dist. Lexis 4340
(S.D.N.Y. 2002) ........................................................................................................ 15
Bell v. Hood, 327 U. S. 678 (1946) .............................................................................. 18
Boggs v. New York City Health and Hosps. Corp., 70 N.Y.2d 972 (1988) ................. 10
Borawick v. Shay, 68 F.3d 597 (2d Cir. 1995) ............................................................... 7
Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179 (2nd Cir.2001) ................... 16
Carey v. Piphus, 435 U.S. 247 (1978) ......................................................................... 20
Chapman v. Capoccia, 283 A.D. 2d 798 (2d Dept. 2001) ........................................... 12
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) .......................... 7
Demarco v. Sadiker, 952 F. Supp. 134 (E.D.N.Y. 1996) ............................................. 20
Discepolo v. Gorgone, 399 F. Supp. 2d 123 (D. Conn. 2005) ..................................... 10
Duke Power Co. v. Carolina Env. Study Group, 438 U. S. 59 (1978) ......................... 19
Edwards v. City of New York, 2011 U.S. Dist. LEXIS 75300
(E.D.N.Y. July 13, 2011). ......................................................................................... 21
Hein v. Cuprum, S.A., 2002 WL 34453309 (S.D.N.Y. Jan. 23, 2002) ......................... 18
Hill v. Cash, 117 A.D. 3d 1423 (4th Dept. 2014) ........................................................ 12
Katt v. City of New York, 151 F. Supp. 2d 313 (S.D.N.Y. 2001) .................................. 8
Krivit v. Pitula, 79 A.D. 3d 1432, 1434-1435 (3rd Dept. 2010) .................................. 12
Metro. Life Ins. v. Taylor, 481 U. S. 58, 63 (1987). ..................................................... 19
NIC Holdings Corp. v. Lukoil, 2009 U. S. Dist. Lexis 32580
(S.D.N.Y. April 14, 2009) ......................................................................................... 17
4
Pastorello v. City of New York, 2001 U.S. Dist. LEXIS 19919, 2001 WL 1543808
(S.D.N.Y. Nov. 30, 2001) ......................................................................................... 20
Rattigan v. Commodore Int'l Ltd., 1989 U.S. Dist. LEXIS 14645, 1989 WL 151678
(S.D.N.Y. Dec. 8, 1989) ............................................................................................ 18
Rodriguez v. City of New York, 72 F.3d 1051 (2d Cir. 1995) ...................................... 20
Saladino v. Stewart & Stevenson Services, Inc., 2011 U.S. Dist. LEXIS 7566
(E.D.N.Y 2011) ......................................................................................................... 22
Shea v. Long Island Railroad, 2009 U. S. Dist. Lexis 43748
(S.D.N.Y. May 21, 2009) .......................................................................................... 11
Thomas v. Kelly, 903 F. Supp.2d 237 (S.D.N.Y. 2012) ............................................... 22
U.S. Underwriters Ins. Co. v. Falcon Constr. Corp., 2006 U.S. Dist. LEXIS 79329,
2006 WL 3146422 (S.D.N.Y. Oct. 30, 2006) ........................................................... 17
United States v. Waters, 23 F. 3d 29 (2d Cir. 1994) .................................................... 19
5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
ADRIAN SCHOOLCRAFT,
10–cv-6005 (RWS)
Plaintiff,
-againstTHE CITY OF NEW YORK, et al.,
Defendants.
--------------------------------------------------------------x
PRELIMINARY STATEMENT
Plaintiff, Police Officer Adrian Schoolcraft, submits this memorandum of law
in opposition to the motions in limine by the medical defendants, Jamaica Hospital
and Drs. Bernier and Isakov (collectively the “Medical Defendants”). The motions are
as follows:
• To exclude testimony by Dr. Roy Lubit that Office Schoolcraft is suffering
from post-traumatic stress disorder;
• To exclude any evidence on the declaratory judgment claim;
• To exclude any reference to a specific dollar amount in damages in the
presence of the jury during the trial or in summations;
• To direct Officer Schoolcraft to “compel” his father to appear as a witness
at trial.
6
Each of these arguments is addressed in order as set forth below.
ARGUMENT
1. Dr. Lubit’s Diagnosis Is Admissible.
The Medical Defendants’ counsel argue that Dr. Lubit’s diagnosis of Officer
Schoolcraft as suffering from post-traumatic stress disorder (“PTSD”) is inadmissible
on the grounds that it is “unreliable.” They do not attack the subject matter of a
diagnosis of PTSD; nor do they attack Dr. Lubit’s qualifications to render an opinion
on that diagnosis. Instead, they argue – without any support in the law or science –
that the analysis done by Dr. Lubit is not sufficient for a diagnosis to be made.
Yet the attorneys cite no rule of law, evidence or other expert opinion to support
this claim. They provide the Court with no science to demonstrate that the methods
used by Dr. Lubit to render his opinion are unreliable as a matter of law, even though
they have three retained experts who were hired to rebut Dr. Lubit’s report. Instead,
they offer the unqualified conclusions of the lawyers in a misleading criticism of Dr.
Lubit’s opinion about PTSD, which is based on a well-established medical diagnosis.
And in doing so, the lawyers raise at best exceedingly weak arguments about the
weight, not the admissibility, of the diagnosis.
The motion in limine, therefore, cannot be granted. Expert testimony is
governed by Rule 702 of the Federal Rules of Evidence and by Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Daubert, the Supreme Court
7
held that Rule 702 had replaced the former standard for admission of expert witness
testimony with a “flexible” inquiry that focuses on whether the proffered expert
testimony is both relevant and reliable. Daubert, 509 U.S. at 589 & 594-95. In
undertaking this flexible inquiry, a trial court must focus on the principles and
methodology employed by the expert, without regard to the conclusions the expert has
reached or the trial court's belief as to the correctness of those conclusions.
Amorgianos v. Amtrak, 303 F.3d 256, 265-268 (2d Cir 2002). The flexible Daubert
inquiry gives the trial court the discretion needed to ensure that the courtroom door
remains closed to junk science while admitting reliable expert testimony that will
assist the trier of fact. Id.
The Medical Defendants do not satisfy that standard. Rule 702 mandates a
liberal standard for the admissibility of expert testimony, Daubert, 509 U.S. at 588,
thus "reinforcing the idea that there should be a presumption of admissibility" of
expert testimony. Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995). As the
Advisory Committee to the 2000 amendments to Rule 702 noted “[a] review of the
caselaw after Daubert shows that the rejection of expert testimony is the exception
rather than the rule.”
In many cases, "'the relevant reliability concerns may focus upon personal
knowledge or experience." Katt v City of New York, 151 F. Supp. 2d 313, 353
(S.D.N.Y. 2001) (quoting Kumho Tire Co., 526 U.S. at 150)). Accordingly,
8
“vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.” Daubert, 509 U.S. at 595.
Lacking any principled criticism of Dr. Lubit’s analysis, the Medical
Defendants employ distortion by misrepresenting the record on Dr. Lubit’s time and
work in connection with the preparation of his report and his conclusions about
Officer Schoolcraft. A more correct understanding of the facts demonstrates that Dr.
Lubit’s work was extensive:
• Dr. Lubit reviewed Officer Schoolcraft’s deposition; conducted one long
interview of Officer Schoolcraft lasting at least and hour and a half; and
had follow-up discussions with Officer Schoolcraft. (Lubit Report at p.
2; Lubit Deposition Transcript (“Tr.”) at pp. 8-10, 221, 305-06, & 323;
attached as Exhibits 1 & 2.) The very detailed notes of his interview and
assessment of Officer Schoolcraft are set forth in his report. (Lubit
Report at pp. 3-6; Exh.1.)
• Dr. Lubit reviewed the depositions of Doctors Bernier, Isakov, Patel and
Dhar. (Report at p. 2; Exh 1.)
• Dr. Lubit reviewed the relevant medical records, including the Jamaica
Hospital chart; the 2002 psychological evaluation of Officer Schoolcraft
when he joined the NYPD; Dr. Lamstein’s records on Officer
9
Schoolcraft; and the relevant sections of Jamaica Hospital’s policy and
procedure manual. (Lubit Report at p. 2; Exh. 1.)
• Before his deposition, he also reviewed portions of Dr. Lamstein’s
deposition; the relevant portions of the Diagnostic and Statistical Manual
(“DSM”); and the relevant Mental Hygiene Law provision, Mental
Hygiene Law § 9.39. (Lubit Tr. 8-9; Exh. 2.)
• By the time of his deposition, Dr. Lubit had spent about 60 hours in total
on the matter. (Lubit Tr. 14.)
If this level of work and analysis is insufficient to render a psychiatric opinion
or diagnosis of Officer Schoolcraft, then such a judicial finding in this case must have
preclusive consequences for the Medical Defendants, who spend only a tiny fraction
of that time in rendering their opinions of Officer Schoolcraft. Dr. Lwin, the fourmonth resident who conducted the initial psychiatric consultation of Officer
Schoolcraft, spent 30 to 60 minutes (according to Dr. Lwin1) interviewing Officer
Schoolcraft and Sergeant James. (Lwin Tr. 33-34; Exh. 3.) That consultation then
became the primary basis upon which Dr. Bernier made her decision to involuntarily
commit Officer Schoolcraft. (Bernier Tr. 87-96 & 190-193; Exh. 4) (relying on Dr.
Lwin’s report in making her decision).
1
Other estimates of the time are “no more than ten minutes.” (See Lubit Tr. 125:17.)
10
If Dr. Lubit’s far more extensive work is insufficient to form an opinion, then
the 30-minute consult by a four-month resident surely cannot constitute the clear and
convincing evidence that the Medical Defendants must present in order to establish the
justification under Section 9.39 of the Mental Hygiene Law. Boggs v. New York City
Health and Hosps. Corp., 70 N.Y.2d 972, 973 (1988) (“The only legal issue presented
is whether the City established by clear and convincing evidence that petitioner … has
a mental illness and is a danger to herself or others); Francis v. Stone, 221 F. 3d 100,
101 (2d Cir. 2000) (“Involuntary civil commitment procedures mandate numerous
protections, including a requirement that the party proposing confinement must prove
by clear and convincing evidence that the person is mentally ill and poses a danger to
himself or others”).
The Medical Defendants also suggest that Dr. Lubit’s opinion is inadmissible
because he did not administer tests that other doctors used in other cases involving
PTSD.
Nothing in those cases holds that the diagnostic methods used in those cases
are the only tests that can be used to diagnosis PTSD or that there is some precise
litany that must be followed for a PTSD diagnosis. Thus, the Medical Defendants'
reliance on Discepolo v. Gorgone, 399 F. Supp. 2d 123 (D. Conn. 2005), is inapposite.
In Discepolo, the defendant sought to exclude expert testimony that plaintiff
suffered from PTSD that was causally connected to sexual abuse when the plaintiff
was a small child. The expert in that case administered three psychological tests in
11
addition to reviewing records, and deposition transcripts of the plaintiff. While the
Discepolo court found that the expert’s methodology was reliable under Daubert, it
did not hold that a departure from those stated methods would mean the testing was
unreliable. In fact, the Discepolo court’s only offered guidance on admissible
methods for diagnosing PTSD was that that “reliability of the diagnosis is bolstered
when” the methods stated above are undertaken. Discepolo v. Gorgone, 399 F Supp
2d 123, 125 (D. Conn 2005) (emphasis added).
Similarly, Shea v. Long Island Railroad, 2009 U. S. Dist. Lexis 43748
(S.D.N.Y. May 21, 2009) does not support the motion. There, a psychologist
administered various test to the plaintiff, and the plaintiff sought to exclude the
psychologist’s interpretation of those test. The court denied the motion, finding no
basis for excluding the expert’s opinion because there was no reason to believe it was
unreliable or different materially from the approach of others in the expert’s field. Id.
at *13.
Thus, the argument by the attorneys for the Medical Defendants that he tests
discussed in Discepolo and Shea are the only methods for a PTSD analysis must be
rejected. Indeed, when the attorneys for the Medical Defendants asked Dr. Lubit
about those tests at his deposition, he told them that typically psychiatrists do not
administer those tests. (Lubit Tr. 199:19-25).2
2
PTSD may be demonstrated without diagnostic testing by symptoms objectively
12
The suggestion by the lawyers for the Medical Defendants that these tests are
required by generally accepted practice, therefore, lacks any foundation in fact.
Indeed, none of the three defense experts hired by the Medical Defendants to submit a
rebuttal report to Dr. Lubit’s report made any suggestion that Dr. Lubit’s diagnosis
lacks a foundation in accepted psychiatric practices. (See Exhs. 5, 6 & 7; Reports of
Drs. Levy, Dowling and Trancredi.) Cf. Krivit v Pitula, 79 A.D. 3d 1432, 1434-1435
(3rd Dept. 2010) (defendants' expert neither opined that diagnostic tests are relied
upon in diagnosing PTSD nor indicated that any such testing would be useful in doing
so).
Rather than criticize the conclusion reached by Dr. Lubit that Officer
Schoolcraft was currently suffering from PTSD, Jamaica Hospital’s expert, Dr. Levy,
embraced it:
The patient's current emotional condition is likely to be referable to the
larger picture of his perceived victimization by the police department with the
hospitalization playing a relatively small role, especially because this
hospitalization concluded with an acknowledgement of the veracity of his
statements. His difficulty finding work is also likely to be largely the result of
this larger picture and is unfortunately consistent with the difficulties faced by
many whistleblowers.
Exh. 5; Dr. Levy Report at p. 7.)
observed by treating physicians and established by the testimony of the injured
plaintiff and others who observe the plaintiff. Hill v Cash, 117 A.D. 3d 1423, 1425
(4th Dept. 2014); Krivit v Pitula, 79 A.D. 3d 1432 (3rd Dept. 2010); Chapman v.
Capoccia, 283 A.D. 2d 798, 799-800 (2d Dept. 2001).
13
The Medical Defendants also play a semantic game in their motion in a
confused attempt to challenge Dr. Lubit’s opinions. Dr. Lubit testified that based on
his examination of Officer Schoolcraft, he was suffering from the PTSD symptoms set
forth in the Diagnostic and Statistical Manual of Mental Disorders (the “DSM”).
(Lubit Tr. 197-199 & 206 & 382). The DSM is an established tool for psychiatric
diagnosis, and PTSD has been included in the DSM for over thirty years.3 The
relevant section is attached as Exhibit 8.
Although Dr. Lubit testified that “as of” October 31, 2009, Officer Schoolcraft
did not have PTSD, that conclusion was not because the events before that day were
irrelevant to Officer Schoolcraft’s mental health. Instead, as Dr. Lubit explained, the
PTSD diagnosis by definition requires that the person suffer from a traumatic event
and that the symptoms persist for at least one month. (Lubit Tr. 206, 309, 383 & 388;
DSM at p. 468 (§ 309.81(E)). Thus, Officer Schoolcraft’s stress from the job before
October 31, 2009 could cause acute stress, but not PTSD. (Id.)
Moreover, Dr. Lubit testified that the events at Jamaica Hospital worsened
Officer Schoolcraft’s mental condition. (Id. at 383.) Far from helping him, the events
at Jamaica Hospital intensified what happened to Officer Schoolcraft that night. (Id.
3
See generally Matthew J. Friedman, U.S. Dep't of Veteran Affairs, Posttraumatic
Stress Disorder: An Overview, http://www.ptsd.va.gov/professional/pages/ptsdoverview.asp (noting that PTSD was added to the Diagnostic and Statistical Manual of
Mental Disorders (DSM-III) in 1980).
14
at 566.) Indeed, Dr. Lubit testified that “it is well know that when a bad situation and
traumatic incident continues for a period and the person . . . continues to have any
difficult circumstances after a trauma, that is very negative for their recovery. . . . How
the person is supported and treated after a trauma is likely as important as the intensity
of the trauma itself in determining with the person will have Post Traumatic Stress
Disorder.” (Id. at 567-68.) And Jamaica Hospital was not a safe, benign or
supportive environment; it was “the place he was being held against his will.” (Id. at
569.)
The Medical Defendants finally suggest that Officer Schoolcraft’s deposition
testimony somehow renders Dr. Lubit’s opinion unreliable. Based on very general
and the vague questions put to Officer Schoolcraft at his deposition about his
“injuries” and “damages” and the “consequences” of being committed, the Medical
Defendants suggest that the symptoms reported to Dr. Lubit were created only for the
purpose of this case. Notably, however, the Medical Defendants never asked Officer
Schoolcraft at his deposition the specific questions that are relevant to the PTSD
diagnosis and were noted by Dr. Lubit as present, including intrusive and recurring
memories of the event; efforts to avoid associations with the trauma; detachment;
irritability; difficulty concentrating and exaggerated startle response. (Lubit Tr. 198,
306-07, 384-88; DSM 309.81 (B)-(D). Moreover, the Medical Defendants ignore the
fact that Officer Schoolcraft did testify at his deposition about the emotional impact of
15
the events on him but that he is not a doctor and was not able to discuss diagnostic
symptoms:
Q. Are you claiming any emotional injuries as a result of the incident?
A. Yes.
Q. What emotional injuries are you claiming as a result of the incident?
A. I am not a doctor, I don't know what diagnosis. But I certainly feel
different now than I did before October 31, 2009 and that entire week
after. It's -- I don't feel as safe going outside. I feel safer at home until
people come banging on my door, making me believe they are going to
come in and haul me off again. I am not a doctor, I don't know -- I doubt
there is a diagnosis. But there is certainly a difference between now and
before October 31, 2009.
Q. What symptoms do you feel as a result of these emotional injuries,
aside from not feeling as safe, as you did before?
MR. NORINSBERG: Objection.
A. I am not a doctor, I don't know how to—I probably don't have all the
terminology for diagnoses, and symptoms. I don't know; I definitely feel
different.
Q. How do you feel different?
A. I feel more afraid leaving my home -- I feel safer at home, less
guarded, less nervous, less stressful.
(Schoolcraft Tr. 233-234; Exh. 9.)
Under these circumstances, the arguments by the Medical Defendants only raise
weak arguments about the weight, not the admissibility of, Dr. Lubit’s opinion. See,
e.g., Bachir v. Transoceanic Cable Ship Co., 2002 U.S. Dist. Lexis 4340 at * 25
(S.D.N.Y. 2002) (motion in limine to exclude expert testimony on PTSD properly
denied because the challenge went to the expert’s weight and credibility and any
shortcoming can be raised during cross-examination); see also Katt v. City of New
York, 151 F. Supp. 2d 313, 357 (S.D.N.Y. 2001) (defendants' challenges fail because
16
they tend to impugn the expert’s skill and knowledge, thereby going to the weight and
credibility, not the admissibility, of his testimony; shortcomings are grist for crossexamination, not exclusion under FRE 702) (citing McCullock v. H.B. Fuller Co., 61
F.3d 1038, 1043 (2d Cir. 1995) ("[defendant's] quibble with [expert's] academic
training . . . and his other alleged shortcomings . . . were properly explored on crossexamination and went to his testimony's weight and credibility -- not its
admissibility")).
Simply put, any gaps or inconsistencies in an expert's reasoning go to the
weight of the expert evidence, not its admissibility. See, e.g., Campbell v. Metro.
Prop. & Cas. Ins. Co., 239 F.3d 179, 186 (2nd Cir.2001).
Evidence on the Declaratory Judgment Claim is Admissible.
The Medical Defendants argue in their “motion in limine” that any evidence
relating to the declaratory judgment claim should be excluded on the ground that the
only remaining claims in the case are state law claims over which the Court has
supplemental jurisdiction. The argument is procedurally and substantively flawed.
First, the argument against the claim for declaratory judgment is not properly a
motion in limine to exclude evidence but a motion to dismiss or a motion for summary
judgment on a legal claim for relief. As such, the motion should be denied because
the Medical Defendants have already had two opportunities to challenge the request
for declaratory judgment relief.
17
First, they could have raised the issue in opposition to the plaintiff’s request for
leave to amend the Second Amended Complaint. Second, they could have raised the
issue on the Medical Defendant’s motion for summary judgment, which sought
dismissal of the declaratory judgment claim for relief on the ground that it did not
apply to them. Thus, this “in limine” motion is merely a second and belated
summary judgment motion on a new ground, which is improper. See, e.g., NIC
Holdings Corp. v. Lukoil, 2009 U. S. Dist. Lexis 32580 at * 5 (S.D.N.Y. April 14,
2009) (denying motion in limine seeking to exclude evidence of damages on the
ground that the issue was in substance previously address on a prior motion for
summary judgment)(citing Baxter Diagnostics, Inc. v. Novatek Med., Inc., 1998 U.S.
Dist. LEXIS 15093, 1998 WL 665138, at *10 (S.D.N.Y. Sept. 25, 1998) (denying
motion in limine where plaintiff's arguments regarding defendant's lost profits were
"largely re-hashes of arguments made in its earlier summary judgment motion and
rejected . . . because of fact disputes."); U.S. Underwriters Ins. Co. v. Falcon Constr.
Corp., 2006 U.S. Dist. LEXIS 79329, 2006 WL 3146422, at *2-3 (S.D.N.Y. Oct. 30,
2006) (denying motion in limine where party's argument was "an improper attempt to
relitigate an issue that [the court] previously decided in her opinion denying
[defendant's] prior motion for summary judgment"); Rattigan v. Commodore Int'l Ltd.,
1989 U.S. Dist. LEXIS 14645, 1989 WL 151678, at *5 (S.D.N.Y. Dec. 8, 1989)
(noting that plaintiff "has filed motion for summary judgment in the guise of a motion
18
in limine" despite the court's "previous denial of summary judgment motions to
dismiss defendant's counterclaims" and denying request to preclude evidence based on
defendant's failure to state a claim); see also Hein v. Cuprum, S.A., 2002 WL
34453309 at *1 (S.D.N.Y. Jan. 23, 2002) (denying motions in limine concerning
expert witness where defendant had pressed the same arguments in a prior summary
judgment motion)).
Second, the motion is substantively meritless because it is predicated on a
fundamental misunderstanding of the law governing the Court’s subject matter
jurisdiction. When this action was filed, the Court’s subject matter jurisdiction was
based on federal question jurisdiction because the Complaint asserted federal claims
based on the First and Fourth Amendments to the Constitution. The Court also had
supplemental jurisdiction over the state law claims pursuant to 28 U. S. C. § 1367.
The fact that the plaintiff has accepted the City Defendants’ Offer of Judgment
does not destroy the Court’s subject matter jurisdiction, which even survives the entry
of a final judgment and persists for appeal purposes and supplemental enforcement
proceedings. Long ago the Supreme Court in Bell v. Hood, 327 U. S. 678, 682 (1946)
held that subject matter jurisdiction is not defeated by the possibility that the claim
may not state a claim and that the existence of subject matter jurisdiction was
determined based on the nature of the claim as pleaded. Accord Duke Power Co. v.
Carolina Env. Study Group, 438 U. S. 59, 69 (1978).
19
Thus, whether a District Court has subject matter jurisdiction is based on the
well-pleaded complaint rule, which looks at the pleading to determine whether a
federal question has been raised, not subsequent proceedings in the case. Metro. Life
Ins. v. Taylor, 481 U. S. 58, 63 (1987). Accordingly, determinations during the course
of the litigation are irrelevant to the initial subject matter jurisdiction issue.
The Medical Defendants also suggest that Officer Schoolcraft lacks standing to
assert a claim for declaratory judgment or that the claims for damages is duplicative of
his claims for damages. The Medical Defendants are wrong. As a matter of federal
law, once the Medical Defendants labeled Officer Schoolcraft a dangerous and
mentally ill person who needed to be involuntarily hospitalized, he lost the important
constitutional right to possess a firearm, a right having particular relevance to any law
enforcement officer.
Pursuant to 18 U. S. C. § 922(g)(8), it is a crime for any person who has been
committed to a mental institution to possess a firearm, and individuals involuntarily
committed under the Mental Hygiene Law fall within the scope of the statutory ban
and are subject to criminal prosecution. See United States v. Waters, 23 F. 3d 29 (2d
Cir. 1994) (affirming gun possession conviction of person committed under Section
9.41 of the New York Mental Hygiene Law).
Under these circumstances and to redress the loss of these rights, Officer
Schoolcraft requests in his Third Amended Complaint (at ¶ 373(C); Dkt. # 341) that
20
the Court enter a declaratory judgment in his favor, finding that the Medical
Defendants’ involuntary commitment of him in the Jamaica Hospital psychiatric ward
was improper and that he is entitled to expungement of those medical records. Settled
law recognizes that expungement is an appropriate equitable remedy to correct an
improper involuntary commitment decision. See Rodriguez v. City of New York, 72
F.3d 1051, 1065-66 (2d Cir. 1995); Pastorello v. City of New York, 2001 U.S. Dist.
LEXIS 19919, *42-43, 2001 WL 1543808 (S.D.N.Y. Nov. 30, 2001) (allowing claim
for equitable remedy of expungement to proceed on the basis that “[h]ospital
personnel's wrongful treatment of plaintiff generated written medical records about
plaintiff which are false, defamatory and embarrassing.”).
Indeed, the remedy of expungement is a part of federal equity law, and “[a]s a
result, even when addressing state law claims, federal courts may always utilize
federal equity rules.” Demarco v. Sadiker, 952 F. Supp. 134, 142-43 (E.D.N.Y.
1996); see Carey v. Piphus, 435 U.S. 247, 259 (1978) (federal courts are capable of to
tailoring remedies to the injury involved). Even though the remedy may not
available under New York law, this Court has the equitable power to grant that relief.
Demarco, 952 F. Supp. 2d at 142-43.
Specific Dollars Amounts Are Important For the Jury
Plaintiff should be allowed to recommend a dollar amount to the jury in his
summation. In his papers, the Medical Defendants suggests that specific dollar
21
amounts unlawfully anchor the jurors’ expectations of a fair award at a place set by
counsel. However, multiple district courts have rejected this same argument. See,
e.g., Edwards v. City of New York, 2011 U.S. Dist. LEXIS 75300 (E.D.N.Y. July 13,
2011). In Edwards, the Court stated as follows:
Defendant asserts that plaintiff should be precluded from suggesting a
specific dollar amount of damages to the jury. 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), 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 v. Union Carbide Corp., 110 F.3d
898, 912 (2d Cir. 1997). Plaintiff's counsel will [thus] be permitted to
suggest a specific dollar amount in his closing statement, but must do so
in the first argument in order for defense counsel to respond if he chooses
to do so, before plaintiff's counsel makes his final argument. The Court
will instruct the jury, as it always does, that statements by lawyers are not
evidence or the law that they are to follow when they begin their
deliberations.
Edwards, 2011 U.S. Dist. Lexis at *5-6.
The Second Circuit affords wide discretion to trial courts to determine whether
or not such recommendations are appropriate. See Saladino v. Stewart & Stevenson
Services, Inc., 2011 U.S. Dist. LEXIS 7566 at *25 (E.D.N.Y 2011). (“Indeed, the
Second Circuit has committed the decision to the discretion of the trial judge, who
may either prohibit counsel from mentioning specific figures or impose reasonable
limitations, including cautionary jury instructions." ) (internal citations omitted).
Courts in this District have previously held that recommending a specific
22
dollar amount to the jury does not unfairly influence the jury. See Thomas v. Kelly,
903 F. Supp.2d 237, 265 (S.D.N.Y. 2012) (“The Court also rejects the defendants'
argument that the suggestion by plaintiff's counsel in his closing argument that the
jury should award Thomas a specific dollar amount resulted in an excessive award. As
the Court just determined, the jury's award was adequately supported by the
record.”). See also Thomas v. Medco, 1998 WL 542321 (S.D.N.Y. Aug. 26,
1998)(“we also conclude that the suggestion by plaintiff's attorney that [plaintiff] be
remunerated in the sum of $300,000 for her emotional injuries did not unfairly
influence the jury… [t]he Circuit has not…ruled that it is an error to permit such
recommendations.”)
Further, the Court can, at its discretion, carefully craft a jury instruction to
alleviate any potential prejudice to defendant. In Kelly, the court gave a similar
instruction: “To cure any potential prejudice, the Court reminded the jury that "[w]hat
the lawyers have said the evidence shows in their opening statements, objections or
questions, or have said in their closing arguments, is not evidence."” (Id. at 265).
Therefore plaintiff respectfully requests that the Court allow him to propose a dollar
figure to the jury, along with a jury instruction will eliminate any potential prejudice.
In the alternative, if the Court does grant this motion, we request that the Court
also limit in limine the Medical Defendants from making any reference at trial to any
specific demands for damages.
23
The Court Has No Authority to “Compel” the Plaintiff to “Make” His Father
Available for Trial and The Request For A Missing Witness Charge Is
Premature.
The Medical Defendants request an order directing the plaintiff to compel his
father to appear as a witness at trial, or in the alternative, giving the jury a missing
witness instruction. The request for an order to compel must be denied because there
is no authority for an order to compel a non-party to appear other than the authority
based on the subpoena powers of Rule 45 of the Federal Rules of Civil Procedure, and
the Medical Defendants have not presented the Court with any justification for this
unprecedented request.
The Medical Defendants took the father’s deposition and can use the deposition
at trial, provided that the required foundation for the use of a deposition at trial has
been established. Fed. Rule Civ. Pro. 32(a)(4); Fed. Rule Evid. 804(b). Since the
father lives beyond the Court’s subpoena range and since the father is currently very
sick with osteomilitis in his foot and ulcer in his foot, his ability to travel is very
limited and it may be medically impossible or ill advised for him to travel at the time
of trial.
In the light of the resolution of the action against the NYPD, however, we also
note that there does not even appear to be any significant reason for the father to
testify. Although the Medical Defendants claim in their motion that the father has
knowledge about many of the events relevant to the case, they fail to point to any
24
specific evidence that they need from him. Indeed, the defendants indicated in the
Joint Pre-Trial Order that they wanted to use the father’s deposition at trial, but have
continued to fail to provide the plaintiff with any designations from the deposition,
notwithstanding the plaintiff’s demands and objections for such designations. (JPTO
at p. 19-20; Dkt. # 477.1.)
Thus, it appears that the Medical Defendants want to have the father appear at
trial for improper purposes, such as the claim that the father is litigious or a “racist” or
owned the rifle later found at the plaintiff’s apartment. (See Plaintiff’s Motion In
Limine at pp. 3-9; Dkt. # 492.) Absent any proffer by the Medical Defendants about
the specific reasons for their extraordinary request, the Court should deny the motion.
The request for a missing witness charge should also be denied as premature.
While the Medical Defendants are certainly entitled to submit to the Court a proposed
jury charge on the issue, the Court cannot and should not make any final
determination until (and unless) a proper foundation for such a charge has been
established at trial.
Generally, a missing witness charge requires evidence that the witness is in the
control of a party, that the party’s absence has not been sufficiently explained, and that
the witness is likely to have important information. Yet as noted above, the Medical
Defendants have failed to make the required showing and the father’s poor health may
25
make such a charge inappropriate. Thus, the motion should be denied at this point as
premature.
CONCLUSION
For these reasons, the motions in limine by the Medical Defendants should be
denied.
Dated: October 12, 2015
s/NBS
__________________________
Nathaniel B. Smith
John Lenoir
100 Wall Street – 23rd Floor
New York, New York 10005
212-227-7062
natbsmith@gmail.com
Law Offices Of Jon L. Norinsberg
225 Broadway, Suite 2700
New York, New York 10007
(212) 791-5396
Cohen & Fitch, LLP
Gerald Cohen
Joshua Fitch
225 Broadway, Suite 2700
New York, New York 10007
(212) 374-9115
26
LIST OF EXHIBITS
1.
2.
3.
4.
5.
6.
7.
8.
9.
Dr. Lubit’s Report
Dr. Lubit’s Deposition Excerpts
Dr. Lwin’s Deposition Excerpts
Dr. Bernier’s Deposition Excerpts
Dr. Levy’s Report
Dr. Dowling’s Report
Dr. Trancredi’s Report
Diagnostic and Statistical Maunal – PTSD Excerpt
Schoolcraft Deposition Excerpt
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