Tirado v. Shutt et al
Filing
170
MEMORANDUM OPINION AND ORDER re: 127 MOTION in Limine , filed by B. Shutt, R. Lassiter, S. Holiday, 132 MOTION for Sanctions MOTION FOR RULE 37 SANCTIONS AGAINST DEFENDANTS, filed by Miguel Tirado, 129 MOTION i n Limine , filed by Miguel Tirado. For the foregoing reasons, Defendants' Motion in Limine (Docket Entry No. 127) is granted in part, and Plaintiff's Motion in Limine (Docket Entry No. 129) is granted in part. Plaintiff's motio n for sanctions pursuant to Rule 37 (Docket Entry No. 132) is granted in part, as set forth above. More specifically, Defendants' First Motion13 in limine is granted in part, and the Court will upon request give a limiting instruction, as set fo rth above. Defendants' Second Motion in limine is denied. Defendants' Third Motion in limine is granted in part, as set forth above. Defendants' Fourth Motion in limine is denied. Defendant's Fifth Motion in limine is denied. Defe ndants' Sixth Motion in limine is granted in part, as set forth above. Plaintiff's First Motion in limine is granted. Plaintiff's Second Motion in limine is granted. Plaintiff's Third Motion in limine is denied. Plaintiff's Fourth Motion in limine is granted. The final pretrial conference, which is currently scheduled for November 12, 2015, is adjourned to December 14, 2015 at 3:00 p.m. The parties must meet and confer immediately to update their Joint Pretrial Statemen t and related submissions in light of the Court's decisions on the summary judgment motion and these motions in limine; the parties should also revisit the question of settlement and notify the undersigned if a renewed settlement reference to Ma gistrate Judge Peck would be helpful in that regard. Defendants must identify which of the 17 late-disclosed witnesses they intend to call at trial and Plaintiffs must identify which, if any, of those witnesses they wish to depose in advance of trial , and the parties must propose a schedule for such depositions in their updated Joint Pretrial Statement. The parties must file their updated Joint Pretrial Statement and submissions by December 4, 2015, with courtesy copies provided for Chambers. (Final Pretrial Conference set for 12/14/2015 at 03:00 PM before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 11/9/2015) (As further set forth in this Order.) (spo) Modified on 11/9/2015 (spo).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
MIGUEL TIRADO,
Plaintiff,
No. 13CV2848-LTS-AJP
-againstSERGEANT BRIAN SHUTT et al.,
Defendants.
-------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
Presently before the Court are the motions in limine of Plaintiff Miguel Tirado
(“Plaintiff” or “Tirado”) and Defendants Sergeant Brian Shutt and Correction Officers Steven
Holliday and Rodney Lassiter (collectively, “Defendants”), as well as Plaintiff’s motion for
preclusive sanctions pursuant to Federal Rule of Civil Procedure 37. The Court has carefully
considered all of the parties’ submissions. For the reasons stated below, the motions are
granted in part and denied in part.
BACKGROUND
In light of the prior motion practice in this case, the Court provides only a brief
summary of the relevant procedural background.1
On April 15, 2013, Plaintiff Miguel Tirado (“Plaintiff”) filed the initial pro se
complaint in this action asserting claims against Defendants Sergeant Brian Shutt, Lieutenant
1
For a full discussion of the factual background of this case, see Memorandum
Opinion and Order Adopting Report and Recommendation in Part (Docket Entry
No. 153).
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
1
Stacy Dominic and Corrections Officers Steven Holliday (“Holliday”), Rodney Lassiter
(“Lassiter”) and Kyle Jackson, arising from a series of alleged constitutional violations. On
January 24, 2014, the case was referred to Magistrate Judge Debra C. Freeman for dispositive
motion practice and, on August 6, 2014, it was reassigned to Magistrate Judge Andrew J. Peck.
Plaintiff, now represented by counsel, filed an Amended Complaint on August 27, 2014 (see
Amended Complaint (“Am. Compl.”), Docket Entry No. 80), and on December 29, 2014,
Defendants moved for partial summary judgment. (See Defendants’ Motion For Summary
Judgment, Docket Entry No. 100.)
On February 23, 2015, Judge Peck issued a Report and Recommendation
(“Report”) recommending, inter alia, that the Court grant Defendants’ motion for partial
summary judgment dismissing three of Plaintiff’s First Amendment retaliation claims. (See
Docket Entry No. 115.) After considering Plaintiff’s objections to the Report and Defendants’
opposition to those objections, the Court issued a Memorandum Opinion and Order adopting
Judge Peck’s Report in part, dismissing the case as against Defendants Kyle Jackson and Stacy
Dominic, and leaving five of Plaintiff’s constitutional claims for resolution at trial. (See Docket
Entry No. 153 at pp. 13-14.) The instant motions were filed prior to this Court’s partial
adoption of the Report.
DISCUSSION
Legal Standards
“The purpose of in limine motions is to enable the Court to rule on disputes over
the admissibility of discrete items of evidence.” See TVT Records v. Island Def Jam Music
Group, 250 F. Supp. 2d 341, 344 (S.D.N.Y. 2003). See also Fed. R. Evid. 104 (“The court must
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
2
decide any preliminary question about whether a witness is qualified, a privilege exists, or
evidence is admissible.”). Such rulings “aid the trial process by enabling the Court to rule in
advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set
for trial, without lengthy argument at, or interruption of, the trial.” Palmieri v. Defaria, 88 F.3d
136, 141 (2d Cir. 1996) (internal quotation marks and citation omitted). In deciding motions in
limine, courts often engage in the balancing test set out in Federal Rule of Evidence 403 (“Rule
403”), which provides that courts must exclude relevant evidence2 when the probative value of
the evidence is substantially outweighed by any potential for “unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403.
Federal Rule of Civil Procedure 26(a) (“Rule 26”) requires parties to provide
during discovery “a copy – or a description by category and location – of all documents,
electronically stored information, and tangible things that the disclosing party has in its
possession, custody, or control and may use to support its claims or defenses.” Fed R. Civ. P.
26(a)(1)(A)(ii). Rule 26 further provides that parties must disclose “the name and, if known, the
address and telephone number of each individual likely to have discoverable information – along
with the subjects of that information – that the disclosing party may use to support its claims or
defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i).
When a party does not timely make such disclosures, Federal Rule of Civil Procedure 37 (“Rule
37”) provides a remedy in the form of a preclusionary sanction which must be imposed “unless
2
Federal Rule of Evidence 401 provides that evidence is relevant if “(a) it 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.
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
3
the failure [to disclose] was substantially justified or harmless.” See Fed. R. Civ. P. 37(c). See
also Design Strategies, Inc. v. Davis, 228 F.R.D. 210, 212 (S.D.N.Y. 2005) (“Rule 37(c)(1)’s
preclusionary sanction is automatic absent a determination of either substantial justification or
harmlessness”) (internal quotation marks and citation omitted). “The burden to prove substantial
justification or harmlessness rests with the dilatory party.” Schiller v. City of New York, Nos.
04CV7922-RJS-JCF, 04CV7921-RJS-JCF, 2008 WL 4525341, at *3 (S.D.N.Y. Oct. 9, 2008). In
determining whether to exclude untimely disclosed evidence or witnesses, the court may consider
four discretionary factors: “(1) the party’s explanation for the failure to comply with the
[disclosure requirement]; (2) the importance of the testimony of the precluded witness[es]; (3) the
prejudice suffered by the opposing party as a result of having to prepare to meet the new
testimony; and (4) the possibility of a continuance.” Quiles v. City of New York, No. 11CV5613FM, 2014 WL 1918635, at *3 (S.D.N.Y. May 8, 2014) (quoting Patterson v. Balsamico, 440 F.3d
104, 117 (2d Cir. 2006)).
Defendants’ Motions3
Defendants’ First Motion – Admission of Opinion Evidence Related to the April
19, 2012, Incident and Evidence of Notices of Discipline Issued to Defendants
Holliday and Lassiter
Defendants have moved to exclude what they characterize as opinion evidence of
Deputy Superintendent William Keyser (the hearing officer at a disciplinary hearing stemming
from a misbehavior report issued by Defendant Holliday against Plaintiff following the April 19,
2012, incident) and Inspector Frank Bigit (who investigated Plaintiff’s claim that Defendants
3
For ease of reference, the Court has denominated each subject of the parties’
omnibus in limine motions sequentially, viz, Defendants’ First Motion,
Defendants’ Second Motion, Plaintiff’s First Motion, and so on.
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
4
Holliday and Lassiter used improper force against him during the April 19, 2012, incident). It is
undisputed that neither of these individuals witnessed the April 19, 2012, incident. Rather, they
made findings and took actions after investigations. Defendants also seek to exclude any
evidence of the notices of discipline that were issued against Defendants Holliday and Lassiter
following the April 19, 2012, incident, as the notices were later withdrawn and Defendants
Holliday and Lassiter were never disciplined.
Plaintiff argues that the evidence of the witnesses’ conclusions and the notices of
discipline is probative of “Defendants’ motivation to retaliate against Mr. Tirado – both on April
19, 2012 and on subsequent dates.” (See Plaintiff’s Memorandum of Law in Opposition to
Defendants’ Motions In Limine (“Plaintiff Opp. Memo”), Docket Entry No. 144 at p. 3.) Plaintiff
asserts that “[i]t is important for the jury to consider that Defendants knew [that they were being
investigated] and that their jobs were on the line as a result of the April 19, 2012 altercation and
subsequent statements made about it,” as such knowledge could form the basis of Defendants’
motive to “[take] certain adverse actions (issu[ing] such false misbehavior reports) against Mr.
Tirado.” (See Plaintiff Opp. Memo at p. 5.) Although Plaintiff refers to “Defendants” in
advancing the argument summarized here, the only incidents he identifies as purportedly
motivated by concern over the notices of discipline are ones involving Holliday. Accordingly,
the Court considers the contested evidentiary proffers only insofar as Plaintiff argues that they are
relevant to the question of whether Holliday issued false misbehavior reports on April 19, 2012,
March 16, 2014, and August 2, 2014, in retaliation for protected activity by Tirado.
Plaintiff’s claim that findings of false testimony, or notices of discipline, issued
after hearings and investigations concerning the April 19, 2012, misbehavior report could
establish a retaliatory motive for the April 2012 report itself is plainly nonsensical. Accordingly,
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
5
the Court focuses on the potential relevance of the challenged information to Plaintiff’s claim that
the March and August 2014 misbehavior reports were retaliatory. Although the inference that the
by-then-withdrawn notice of discipline could have angered Holliday sufficiently to be a
motivating factor in the issuance of the later reports is weak, the traceability of the threat of
termination to the rejection of Holliday’s accusations against Tirado is relevant, within the
meaning of Rule 402, to the question of retaliatory motive. As Plaintiff points out, Holliday
acknowledged in his deposition that officers are rarely disciplined for misconduct involving
inmates; a rational jury could find that the series of events made a sufficient impression on
Holliday to motivate him to take revenge on Tirado even though Holliday’s job was no longer
threatened at the time. The Court will therefore admit documentation of the dismissal of the
April 2012 misbehavior report (Declaration of Paul J. Kremer in Opposition to Defendants’
Motions in Limine, Docket Entry No. 145, Ex. K), the notice of discipline that was issued to
Holliday in August 2012 (id., Ex. C), and the October 2013 letter informing Holliday of the
withdrawal of the notice of discipline. (Id., Ex. N.) The Bigit and Keyser reports and email
communications will be excluded, as will any testimony elaborating on the reasons for the
determinations and notices. Such other documentary and testimonial evidence of reasoning or
conclusions by Keyser and Bigit as to the facts of the incident or the credibility of the testimony
of the witnesses will not be admitted, as such testimony has minimal probative value because it is
not based on personal knowledge of the facts of the incident and has substantial potential for
unfairly prejudicing the jury’s evaluation of the credibility of the Defendants and their witnesses.
Upon request, the Court will instruct the jury to the effect that the evidence of the
issuance of the notice of discipline and later withdrawal of the notice of discipline is admitted
solely in connection with the jury’s consideration of Plaintiff’s claim that Holliday’s issuance of
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
6
misbehavior reports in March and August 2014 were retaliatory actions arising from the dismissal
of the April 2012 misbehavior report and the issuance of the August 2012 notice of discipline,
rather than for the truth of the factual statements in the documents concerning the April 2012
incident and the proceedings that followed. The jury may further be instructed that they are not to
speculate on the reasons for the issuance or the withdrawal of the notice of discipline.
Defendants’ First Motion in limine is thus granted in part.
Defendants’ Section Motion – Preclusion of Argument that the August 2, 2014,
Misbehavior Report Supports a Retaliation Claim
Defendants seek to prevent Plaintiff from arguing to the jury that the August 2,
2014, misbehavior report filed by Defendant Holliday against Plaintiff is demonstrative of a
pattern of retaliation by Holliday. Defendants argue that, because Plaintiff’s retaliation claim
based on the August 2, 2014, report itself is precluded on exhaustion grounds, admission of
argument centering on this report would be impermissibly confusing in violation of Rule 403.4
Defendants also argue that presentation of this argument would constitute an attempt to offer
improper propensity evidence in violation of Fed. R. Evid. 404. (See Memorandum of Law in
Support of Defendant’s Motions in Limine (“Def. Memo”), Docket Entry No. 128 at p. 8.)
In response, Plaintiff argues that evidence of Holliday’s act of filing the August 2,
2014, misbehavior report is admissible to show “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident” on other occasions, pursuant to
Federal Rule of Evidence 404(b)(2). (See Plaintiff Opp. Memo at p. 9.) Plaintiff posits that
evidence of his August 2, 2014, interaction with Defendant Holliday, including Holliday’s filing
of the misbehavior report, is relevant to a determination of whether Holliday acted with an
4
In his Report, Judge Peck determined that the August 2014 report could not form
the basis of a retaliation claim because Plaintiff had failed to exhaust his
administrative remedies with respect to any such claim. (See Report at p. 27.)
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
7
improper retaliatory motive “on April 19, 2012 and afterwards.” (Plaintiff Opp. Memo at p. 9.)
Furthermore, Plaintiff points to Judge Peck’s statement in his Report that Holliday’s motive for
the August 2, 2014, misbehavior report could be considered “circumstantial evidence of a
retaliatory motive” for the April 19, 2012, use of force incident. (See Report at p. 27.)5
Judge Peck properly concluded that – despite the fact that it does serve as the basis
for a stand-alone retaliation claim itself – the August 2, 2014, report may be considered
circumstantial evidence of Holliday’s retaliatory motive at other points in this case. Defendants’
failure to object to this finding forecloses any further argument on the issue. Furthermore, in this
Court’s Memorandum Opinion and Order adopting Judge Peck’s Report, the Court accepted as
plausible Plaintiff’s argument that the August 2, 2014, misbehavior report could be considered
part of a “campaign of harassment” perpetrated by Defendant Holliday against Plaintiff. (See
Memorandum Opinion and Order, Docket Entry No. 153 at p. 12.) Defendants’ Second Motion
in limine is therefore denied.
Defendants’ Third Motion – Cross Examination of Inmate Witnesses on Criminal
Convictions
Defendants next move in limine for permission to cross-examine four of Plaintiff’s
inmate-witnesses about their criminal convictions.6 Defendants rely on Federal Rule of Evidence
609, which allows a party to attack “a witness’s character for truthfulness by [submitting]
evidence of a criminal conviction,” as long as the conviction occurred within the last ten years
and presentation of the conviction survives Rule 403 balancing. See Fed. R. Evid. 609.
Defendants argue that determination of the credibility of the Inmate Witnesses is highly important
5
Defendants did not object to that element of Judge Peck’s Report.
6
These witnesses are Anthony Cassidy, Elias Otero, Kelvin Vazquez, and Steven
Kennedy (collectively, the “Inmate Witnesses”).
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
8
to the jury, because these witnesses’ characterizations of the April 19, 2012, incident differ
markedly from the characterizations offered by the Defendants. (See Def. Memo at p. 10.)
Defendants further argue that each of these witnesses has been convicted of an offense that bears
heavily on the witness’ character for honesty, rendering discussion of the prior convictions highly
probative for Rule 403 purposes. (See id. at pp. 10-11, “[h]ere, the criminal convictions of
plaintiff’s witnesses are: Anthony Cassidy (Attempted Burglary, 2nd), Elias Otero (Murder 2nd),
Kelvin Vazquez (Robbery 2nd and Robbery 3rd), and Steven Kennedy (Criminal Sale of
Controlled Substance 5th and Attempted Assault 1st).) Defendants note that, because the Inmate
Witnesses are not defendants in the case, Rule 609(a)(1)(A) provides that evidence of their prior
convictions is presumptively admissible “subject to Rule 403” balancing. In such a situation, a
court will frequently exercise its discretion in considering “(1) the impeachment value of the prior
crime, (2) the remoteness of the prior conviction, (3) the similarity between the past crime and the
conduct at issue, and (4) the importance of the credibility of the witness.” Daniels v. Loizzo, 986
F. Supp. 245, 250 (S.D.N.Y. 1997).
In response, Plaintiff essentially argues that the minimal probative value of the
Inmate Witnesses’ prior convictions is substantially outweighed by the potential for both unfair
prejudice and confusion of issues. Plaintiff asserts that, should the Court allow Defendants to
cross-examine the Inmate Witnesses about their prior convictions, the examination should be
limited to eliciting the fact and date of the Inmate Witnesses’ respective convictions. (See
Plaintiff Opp. Memo at pp. 12-13.)
The Court agrees with Defendants that the prior convictions of the Inmate
Witnesses have some probative value with respect to their character for truthfulness. This value,
however, is minimal, and any extended exploration of the nature and circumstances of the
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
9
witnesses’ prior criminal conduct presents significant potential for unfair prejudice to the Plaintiff
and confusion of the jury. Therefore, the Court grants Defendants’ motion in limine only to the
extent that Defendants will be permitted to elicit on cross-examination the fact and date of the
Inmate Witnesses’ convictions. No further testimony regarding these convictions will be
permitted, and no extrinsic evidence will be admitted, unless an Inmate Witness denies the fact of
his conviction.7
Defendants’ Fourth Motion – Cross Examination of Plaintiff Regarding Portions
of His Inmate Disciplinary History
Defendants seek permission to cross-examine Plaintiff regarding portions of his
inmate disciplinary history. Specifically, they seek to cross-examine Plaintiff on disciplinary
infractions for smuggling, unauthorized exchange and vandalism/stealing, as Defendants claim
that these violations all involve “deception or a lack of truthfulness” and thus are appropriate
topics of inquiry under Fed R. Evid. 608(b) and probative of Plaintiff’s credibility.8 In response,
Plaintiff argues that Defendants have not provided any evidence of how these disciplinary
infractions are probative of his character for truthfulness, and further claims that crossexamination on these topics would confuse the jury, as several of Plaintiff’s claims are based
upon several allegedly false misbehavior reports filed against him.
The Court finds that any probative value of such cross-examination is substantially
outweighed by the risk of unfair prejudice. The parties have indicated to the Court that they have
7
In light of this determination, Plaintiff’s motion in limine seeking to exclude
evidence of the Inmate Witnesses’ criminal convictions is denied. (See Plaintiff
Memo at pp. 6-9.)
8
Federal Rule of Evidence 608 permits specific instances of conduct “to be
inquired into if they are probative of the character for truthfulness or
untruthfulness of . . . the witness.”
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
10
agreed to a stipulation regarding discussion of Plaintiff’s criminal history, pursuant to which the
jury will be informed that Plaintiff was convicted of a felony for which he received a sentence of
more than one year. (See Plaintiff Opp. Memo at p. 13.) Furthermore, the jury will already be
well aware that Plaintiff is a prisoner in a maximum security facility. In light of this, any inquiry
into Plaintiff’s disciplinary history would be of minimal additional probative value as to
Plaintiff’s credibility and would present the potential for unfair prejudice to the Plaintiff on the
merits of his claims that he was improperly targeted for discipline. Accordingly, the evidence of
disciplinary infractions is inadmissible, under Rule 403, for general impeachment purposes and
Defendants’ Fourth Motion in limine on this point is denied.9
Defendants’ Fifth Motion – Presentation of April 19, 2012, as First Amendment
Retaliation Claim
Defendants move to prevent Plaintiff from framing the April 19, 2012, use of force
incident as a First Amendment retaliation claim, arguing that it was not pleaded as such and that it
therefore should be presented to the jury only as an Eighth Amendment excessive use of force
claim. (See Def. Memo at pp. 13-14.) Defendants argue that “plaintiff’s new ‘retaliation’ theory
is really just a rephrasing of the original claim, with the alleged motive by Holliday and Lassiter .
. . now phrased as ‘retaliation’ and the use of force being the ‘adverse action.’” (Def. Memo at p.
14.) In response, Plaintiff notes that Judge Peck found in his Report that Plaintiff’s Amended
Complaint sufficiently pleaded a First Amendment retaliation claim with respect to the April 19,
2012, incident. (See Report at 25-26; Plaintiff Opp. Memo at pp. 15-16.) Defendants did not
object to this aspect of the Report, which has been adopted.
9
For substantially the same reasons, the Court grants Plaintiff’s motion seeking
exclusion of any evidence related to the Inmate Witnesses’ prison disciplinary
histories.
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
11
Plaintiff will be permitted to present both First and Eighth Amendment claims
based on the April 19, 2012, incident, and Defendants’ Fifth Motion in limine is thus denied.
Defendants’ Sixth Motion – Preclusion of Argument that Defendants “Conspired”
With Each Other
Finally, Defendants move the Court to prohibit Plaintiff from arguing that the
Defendants “conspired” with each other in this matter. Defendants note that all conspiracy claims
have been excluded from this case in light of the intracorporate conspiracy doctrine. (See Docket
Entry No. 76.)10 In response, Plaintiff confirms that he does not intend to make a legal claim for
conspiracy, but argues that he should be entitled to express his belief as a lay person that
Defendants conspired together to deprive him of his civil rights. (See Plaintiff Opp. Memo at p.
18.)
If Plaintiff can proffer a non-speculative factual foundation for his perception that
Defendants acted in concert, Plaintiff’s use of the term “conspiracy” in his testimony, to describe
a perceived agreement to take joint action to violate Plaintiff’s civil rights, is neither
inappropriate nor unduly inflammatory. Plaintiff’s counsel may not, however, use the conspiracy
nomenclature in arguments to the jury. Furthermore, the Court’s instructions to the jury will
make it clear that no cause of action based on a conspiracy theory is being put forward and that its
determinations with respect to the claims against each individual defendant must rest on the
evidence regarding the defendant’s own conduct. Accordingly, Defendants’ Sixth Motion in
limine is denied to the extent Defendants seek to bar Plaintiff himself from using the term
10
See e.g., Anemone v. Metropolitan Transp. Authority, 419 F. Supp. 2d 602, 604
(S.D.N.Y. 2006) (holding that the intracorporate conspiracy doctrine provides that
the “two or more actors requirement [of a conspiracy] cannot be satisfied where
all of the alleged conspirators are employees of a single entity and acting within
the scope of their employment as agents of that entity.”).
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
12
“conspiracy” in testifying, provided that a proper foundation is laid, and is granted as to argument
by counsel.
Plaintiff’s Motions
Plaintiff’s First Motion – Exclusion of Untimely Produced Photographs of
Plaintiff and Sing Sing
Plaintiff moves to exclude two of Defendants’ proposed trial exhibits: Defendants’
Exhibit AA, which is a set of photographs of Plaintiff Tirado, and Defendants’ Exhibit M, which
is a set of yet-to-be taken photographs of various locations at Sing Sing. (See Plaintiff’s
Memorandum of Law in Support of His Motions in Limine (“Plaintiff Memo”), Docket Entry No.
130 at pp. 1-6; see also Docket Entry No. 125-4, Defendants’ Exhibit List, Exhibit D to Joint
Pretrial Order.) Plaintiff moves to exclude these photographs on two separate bases.
First, Plaintiff argues that Defendants failed to disclose these photographs as
required by Rule 26(a)(1), warranting their exclusion under Rule 37. (See Plaintiff Memo at p.
2.) Plaintiff claims that the photographs of him were not disclosed until five months after the
close of fact discovery, and that the proposed photographs of Sing Sing have not yet been taken.
Plaintiff also claims that the probative value of the photographs is substantially outweighed by the
prospect of unfair prejudice, such that the photographs should be excluded under Rule 403. With
respect to the photographs of himself, Plaintiff argues that they are essentially mug shots taken of
him while in prison and thus reinforce to the jury that he has been in prison for a long time, a fact
that he asserts is unfairly prejudicial. (See Plaintiff Memo at pp. 5-6.) With respect to the
photographs of locations at Sing Sing, Plaintiff argues that they would be cumulative, as both
sides have already offered diagrams depicting relevant locations at Sing Sing on their respective
exhibit lists, as well as unfairly prejudicial, as they will unfairly illustrate that prison is a
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
13
dangerous place for correction officers. Furthermore, Plaintiff notes that he is no longer housed
at Sing Sing, and therefore would be unable to contest the accuracy of Defendants’ photographs
of the facility or obtain alternative photographs for rebuttal. (See Plaintiff Memo at p. 6.)
Defendants argue that the photographs of Plaintiff are relevant to his claim that he
has suffered a permanent facial disfigurement, and that any potential prejudice arising from the
fact that the photos appear to be mug shots can be remedied by redaction of any references to the
Department of Corrections and Community Supervision (“DOCCS”), as well as Plaintiff’s
Departmental Identification Number (“DIN”), height and weight. (See Memorandum of Law in
Opposition to Plaintiff’s Motions in Limine and Rule 37 Motion to Exclude Witnesses (“Def.
Opp. Memo”), Docket Entry No. 142 at p. 14.) Defendants further argue that the photographs
they intend to take of the cell block at Sing Sing will provide the jury with an accurate
perspective as to where all of the Inmate Witnesses, who allegedly witnessed the Defendants’ use
of force against Plaintiff, were located in relation to the incident; that the photographs will do
nothing to indicate that prison is a dangerous place for corrections officers; and that plaintiff’s
attorneys are welcome to accompany defense counsel when they take the photographs, in order to
obviate any concerns regarding authenticity. (See Def. Opp. Memo at pp. 14-16.) Thus,
Defendants argue, their failure to timely disclose these photographs to Plaintiff pursuant to Rule
26 is essentially harmless.
Plaintiff’s motion for exclusion of these photographs is granted. Defendants have
proffered no substantial justification for their failure to produce the photographs in a timely
manner, nor is this failure harmless. Exclusion is also warranted under Rule 403. The
photographs of Plaintiff are of extremely poor quality, and thus are unlikely to be probative of
issues regarding the origin of Plaintiff’s claimed facial deformity. Moreover, the photographs are
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
14
clearly mug shots taken by law enforcement authorities at different times and thus could lead
jurors to draw adverse inferences concerning Plaintiff’s character and criminal history.
Redaction of references to the DOCCS or Plaintiff’s DIN, height and weight would not
effectively alleviate the unfairly prejudicial nature of these photographs, which have height
measurement markings in the background and show traditional mug shot poses and whose
probative value is minimal at best.
The Court also finds that Defendants’ proposed photographs of the cell block at
Sing Sing are properly excluded in light of Rule 403 considerations. As an initial matter, these
photographs would be cumulative in light of the diagrams included by both parties on their
respective exhibit lists. Moreover, the slight probative value that such photographs would have is
greatly outweighed by the prejudice that Plaintiff would suffer in that neither Plaintiff nor the
Inmate Witnesses would have the opportunity to verify the perspective of any potential
photographs, or to re-create their sight lines during the April 19, 2012, incident.
Plaintiff’s First Motion in limine is, accordingly, granted.
Plaintiff’s Second Motion – Limitation of Testimony of Defendant’s Expert, Dr.
Erlanger
Plaintiff also moves in limine to exclude the testimony of Defendants’ expert, Dr.
David Erlanger, “[t]o the extent that Defendants intend to offer expert testimony from Dr.
Erlanger beyond the scope of Dr. Erlanger’s qualifications or the direct testimony of Mr. Tirado’s
expert, Dr. Lawrence Shields.” (Plaintiff Memo at p. 9.) Plaintiff asserts that Dr. Erlanger was
identified by Defendants solely as a rebuttal expert and argues on that basis that the description of
his proposed testimony set out in the Defendants’ exhibit list (he is “[e]xpected to testify
regarding the injuries plaintiff allegedly suffered as a result of the 4/19/12 use of force”) is
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
15
impermissibly broad.11 (See Docket Entry No. 125-2, Defendants’ Witness List, Exhibit B to
Proposed Joint Pretrial Order.) Plaintiff further argues that Dr. Erlanger’s qualifications are
limited, and thus his potential testimony is constrained by Federal Rule of Evidence 702, which
requires that “experts stay within the reasonable confines of [their] subject area . . . as the
admission of an expert does not provide that individual with carte blanche to opine on every issue
in the case.” See Fate v. Village of Spring Valley, No. 11CV6838-JPO, 2013 WL 2649548, at *2
(S.D.N.Y. June 13, 2013). Plaintiff also points to Dr. Erlanger’s deposition testimony in arguing
that he may only opine on the neuropsychological sequelae of the April 19, 2012, incident, which
precludes him from offering opinions in response to several of Dr. Shields’ nonneuropsychological diagnoses. (See Plaintiff Memo at pp. 10-11; see also Docket Entry Nos.
131-9, Ex. I (Deposition of David M. Erlanger), 131-10, Ex. J (Erlanger Neuropsychological
Evaluation) and 131-11, Ex. K (Erlanger Curriculum Vitae).)
Defendants assert that discussion of this issue “is premature as the nature of Dr.
Erlanger’s testimony will depend on the testimony of the plaintiff and his expert, Dr. Shields.”
(Def. Opp. Memo at p. 21, note 19.) While noting that Dr. Erlanger’s examination of Plaintiff
was comprehensive and that he produced a report that was not cabined exclusively to rebuttal of
Dr. Shields’ report, Defendants concede that “Dr. Erlanger is not a medical doctor or accident
reconstruction expert, therefore, he is unqualified to testify as to a number of the issues raised by
plaintiff in his moving papers.” (Def. Opp. Memo at p. 23.)
11
When Defendants submitted their request seeking an extension of discovery to
produce their expert disclosure to Plaintiff pursuant to Fed R. Civ. P. 26(a)(2),
they repeatedly characterized their expert as a “rebuttal expert” who would
produce a “rebuttal report.” (See Docket Entry No. 93.) The discovery extension
request was granted on December 1, 2014, by Magistrate Judge Peck’s memo
endorsement. (See Docket Entry No. 94.)
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
16
Having considered carefully the relevant procedural history and the profferes as to
Dr. Erlanger’s limited area of expertise, the Court grants Plaintiff’s Second Motion in limine. Dr.
Erlanger will be permitted to testify only in rebuttal to expert testimony proffered on Plaintiff’s
principal case, and only as to matters within his area of expertise (neuropsychology). Any further
issues as to specific areas of testimony, including issues concerning the permissible temporal
context of his opinions, will be taken up in the context of the trial.
Plaintiff’s Third Motion – Exclusion of Evidence of Inmate Witnesses’ Criminal
Convictions
For substantially the reasons explained above in connection with Defendants’
Third Motion in limine, Plaintiff’s Third Motion in limine is denied.
Plaintiff’s Fourth Motion – Exclusion of Evidence of Inmate Witnesses’
Disciplinary Histories
For substantially the reasons explained above in connection with Defendants’
Fourth Motion in limine, Plaintiff’s Fourth Motion in limine is granted.
Plaintiff’s Motion For Rule 37 Preclusive Sanctions
Plaintiff seeks, pursuant to Fed. R. Civ. P. 37, exclusion of 17 defense witnesses
who, although they may have been mentioned or discussed in documents, deposition testimony or
pleadings, were never identified by Defendants as potential witnesses in disclosures pursuant to
Rule 26(a)(1). The individuals were identified for the first time as potential witnesses well after
discovery, in disclosures made in anticipation of the final pretrial conference. Plaintiff claims
prejudice as a result of this failure to make disclosures, asserting that Plaintiff’s discovery
decisions were made on the assumption that Defendants’ trial case would be proffered only
through individuals who had been identified as potential witnesses in the Rule 26(a)(1)(A)(i)
disclosures, and further asserts that much of the testimony of the additional witnesses could be
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
17
cumulative. Plaintiff seeks preclusion of the witnesses and an award of the expenses of the Rule
37 motion practice or, to the extent the Court permits the witnesses to be called, an opportunity to
depose them in advance of trial at Defendants’ expense. Defendants proffer that the disclosure
framework in this case was unusual because it was commenced pro se and that Plaintiff is not
prejudiced because each individual was in same way known to Plaintiff.
Plaintiff’s Rule 37 motion is granted in part. While Defendants have not
demonstrated that their failure to comply with the obligation to disclose potential witnesses as
such was substantially justified and the failure was not harmless, the Court concludes that
preclusion of all of the witnesses is too severe a sanction and that, in light of the Plaintiff’s failure
to engage in informal communications prior to initiation of Rule 37 motion practice in accordance
with the undersigned’s individual practices rules and the Local Rules of this Court, an award of
the costs of the motion practice is not warranted. However, the Defendants must produce
promptly for deposition any of the belatedly disclosed witnesses that Plaintiff requests to depose
in advance of trial and cover all expenses, including witness and attorney travel (but not attorney
time charges12), incurred in connection with such depositions.
12
This exclusion is without prejudice to any later application for an attorneys’ fee
award in the event that Plaintiff prevails on the merits of his claims.
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
18
CONCLUSION
For the foregoing reasons, Defendants’ Motion in Limine (Docket Entry No. 127)
is granted in part, and Plaintiff’s Motion in Limine (Docket Entry No. 129) is granted in part.
Plaintiff’s motion for sanctions pursuant to Rule 37 (Docket Entry No. 132) is granted in part, as
set forth above. More specifically,
Defendants’ First Motion13 in limine is granted in part, and the Court will upon
request give a limiting instruction, as set forth above.
Defendants’ Second Motion in limine is denied.
Defendants’ Third Motion in limine is granted in part, as set forth above.
Defendants’ Fourth Motion in limine is denied.
Defendant’s Fifth Motion in limine is denied.
Defendants’ Sixth Motion in limine is granted in part, as set forth above.
Plaintiff’s First Motion in limine is granted.
Plaintiff’s Second Motion in limine is granted.
Plaintiff’s Third Motion in limine is denied.
Plaintiff’s Fourth Motion in limine is granted.
The final pretrial conference, which is currently scheduled for November 12, 2015,
is adjourned to December 14, 2015 at 3:00 p.m. The parties must meet and confer immediately
to update their Joint Pretrial Statement and related submissions in light of the Court’s decisions
on the summary judgment motion and these motions in limine; the parties should also revisit the
question of settlement and notify the undersigned if a renewed settlement reference to Magistrate
Judge Peck would be helpful in that regard. Defendants must identify which of the 17 late-
13
The Court’s nomenclature is explained in footnote 3, supra.
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
19
disclosed witnesses they intend to call at trial and Plaintiffs must identify which, if any, of those
witnesses they wish to depose in advance of trial, and the parties must propose a schedule for
such depositions in their updated Joint Pretrial Statement.
The parties must file their updated Joint Pretrial Statement and submissions by
December 4, 2015, with courtesy copies provided for Chambers.
SO ORDERED.
Dated: New York, New York
November 9, 2015
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
TIRADOMOTSINLIMINEV.3.WPD
VERSION 11/9/2015
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?