Olutosin v. Lee et al
Filing
216
OPINION AND ORDER: For the foregoing reasons, Plaintiffs motion is GRANTED in part, DENIED in part, and RESERVED in part. Defendants' motion is likewise GRANTED in part, DENIED in part, and RESERVED in part. The Clerk of the Court is directed to terminate the motions at ECF Nos. 185 & 187. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 10/31/2019) (jca)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AJAMU OLUTOSIN,
Plaintiff,
14-cv-00685 (NSR)
-against-
OPINION & ORDER
C.O. GUNSETT, et al.,
Defendants.
NELSON S. ROMAN, United States District Judge:
Plaintiff Ajamu Olutosin ("Plaintiff') brings this action pursuant to 42 U.S.C. § 1983
("Section 1983") against several personnel from the Green Haven Correctional Facility
("Green Haven"), namely Sergeant Clifford Gunsett, Correction Officer ("C.O.") Jason Brothers,
C.O. Sean Carlson, C.O. William Bresett, and C.O. Aaron Coffin (collectively, "Defendants").
Plaintiff asserts a claim of excessive force under the Eighth Amendment to the United States
Constitution. 1
Trial is scheduled to begin on November 12, 2019. In anticipation, both parties have filed
pre-trial motions in limine. (See Pl.'s Mot. in Limine, ECF No. 189; Defs.' Mot. in limine, ECF
No. 187.) For the following reasons, the parties' motions are GRANTED in part, DENIED in part,
and RESERVED in part.
BACKGROUND
The Court assumes familiarity with the facts and allegations in this case. See, e.g., Olutosin
v. Lee, No. 14-cv-00685 (NSR), 2018 WL 4954107 (S.D.N.Y. Oct. 12, 2018) (addressing plaintiffs motion
for summary judgment and defendants' cross motion for summary judgment); Olutosin v. Lee, No. 14-cv-
By Opinion and Order dated October 12, 2018, this Court denied Plaintiffs motion for summary judgment
in its entirety, granted Defendants' cross motion to dismiss claims of retaliation and claims related to
Plaintiffs alleged retinal detachment, and denied Defendants' cross motion related to Plaintiffs claim of
excessive force-the remaining claim in this matter. (ECF No. 151).
1
00685 (NSR), 2016 WL 2899275 (S.D.N.Y. May 16, 2016) (addressing defendants’ motion to dismiss).
Accordingly, it turns to the merits of the parties’ motions.
LEGAL STANDARD
“A district court’s inherent authority to manage the course of its trials encompasses the
right to rule on motions in limine.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d
173, 176-77 (S.D.N.Y. 2008) (citing Luce v. United States, 469 U.S. 38, 41 n. 4 (1984)). An in
limine motion is intended “to aid the trial process by enabling the Court to rule in advance of trial
on the relevance of certain forecasted evidence, as to issues 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). “Because a ruling on a motion in limine is ‘subject to change as the case unfolds,’ this
ruling constitutes a preliminary determination in preparation for trial.” United States v. Perez, No.
09–CR–1153 (MEA), 2011 WL 1431985, at *1 (S.D.N.Y. Apr. 12, 2011) (quoting Palmieri, 88
F.3d at 139).
The Federal Rules of Evidence provide that only relevant evidence is admissible. Fed. R.
Evid. 402. Evidence is relevant if “it has any tendency to make a fact more or less probable than
it would be without the evidence . . . and the fact is of consequence in determining the action.”
Fed. R. Evid. 401(a)-(b). Relevant evidence may still be excluded by the Court “if its probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. Though the “standard of relevance established by the
Federal Rules of Evidence is not high,” United States v. Southland Corp., 760 F.2d 1366, 1375
(2d Cir. 1985), the Court has “broad discretion to balance probative value against possible
prejudice” under Rule 403. United States v. Bermudez, 529 F.3d 158, 161 (2d Cir. 2008).
2
DISCUSSION
Both parties have moved in limine to preclude certain testimonial or documentary evidence.
Plaintiff has moved for an order (1) precluding Deputy Superintendent of Security (“DSS”) Mark
Royce and/or Anthony Russo from offering (a) testimony related to the New York State
Department of Corrections and Community Supervision’s (“DOCCS”) Use of Force policies and
procedures (the “UOF Policy”) or (b) legal conclusions regarding the same; (2) precluding Dr.
Robert Bentivegna from offering expert testimony related to his medical treatment of Plaintiff after
the February 1, 2011 use-of-force incident (the “February 1st Incident”); (3) limiting or excluding
the expert testimony of Dr. Gregory Mazarin; (4) precluding Defendants from admitting
documents, or portions of documents, drafted by various corrections officers; (5) excluding
statements by Defendant Bresett regarding his fault in the February 1st Incident; (6) excluding
statements by Lieutenant D. Carey, Sergeant D. Kaufman, C.O. J. MacIsaac, and C.O. J. Rodriguez
as cumulative, a waste of time, and potentially prejudicial; (7) precluding Defendants from offering
evidence of Plaintiff’s criminal convictions or his disciplinary history; and (8) precluding
documents related to Plaintiff’s disciplinary charges stemming from the February 1st Incident.
(Pl.’s Mem. of Law in Support of Mot. in Limine (“Pl. Mot.”), ECF No. 189, at 1.)
For their part, Defendants have moved for an order (1) striking Plaintiff’s belated Rule
26(a) disclosure and barring Plaintiff from calling any witness other than those disclosed by
Defendants; (2) permitting Defendants to impeach Plaintiff with his criminal history;
(3) precluding Plaintiff from offering certain logbooks into evidence; (4) precluding Plaintiff from
introducing Defendants Brothers and Gunsett’s Injury Reports; (5) precluding Plaintiff from
introducing his disciplinary history report into evidence; (6) precluding Plaintiff from offering
“speculative testimony” or evidence related to dismissed matters; and (7) requiring Plaintiff to
3
introduce the entirety of certain disclosed exhibits. (Defs.’ Mem. of Law in Support of Mot. in
Limine (“Defs. Mot.”), ECF No. 186, at 1-2.)
The Court addresses each motion in turn.
I.
Plaintiff’s Motions in Limine
A. Plaintiff’s Motion to Preclude Expert Testimony
1. DSS Russo and/or DSS Royce
In his motion, Plaintiff argues that the Court should preclude the testimony of either DSS
Russo or DSS Royce because Defendants have failed to provide disclosures in conformance with
the requirements of Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure. (Pl. Mot. 3-5.)
Defendants disagree, arguing that their disclosure was sufficient, and that, regardless, any issues
with the disclosure were substantially justified or otherwise harmless. (Defs.’ Opp’n to Pl. Mot.
(“Defs. Opp.”), ECF No. 198, at 4-8.) As will be explained below, the Court agrees with Plaintiff
and will limit the testimony of either DSS Russo or DSS Royce at trial.
a. Adequacy of Expert Disclosures
In general, a party must “disclose to the other parties the identity of any witness it may use
at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. Proc.
26(a)(2)(A). These disclosures typically must be made at least 90 days before the date set for trial
or for the case to be ready for trial. Id. 26(a)(2)(D)(i).
If the witness has been “retained or specially employed to provide expert testimony,” they
must provide a written report containing
(i) a complete statement of all opinions that the witness will express and the basis
and reason for them; (ii) the facts or data considered by the witness in forming
them; (iii) any exhibits that will be used to summarize or support them; (iv) the
witness's qualifications, including a list of all publications authored in the previous
10 years; (v) a list of all other cases in which, during the previous 4 years, the
4
witness testified as an expert at trial or by deposition; and (vi) a statement of the
compensation to be paid for the study and testimony in the case.
Id. 26(a)(2)(B). By contrast, if the expert is not retained, no report is required. Instead, the expert
disclosure “must state: (i) the subject matter on which the witness is expected to present evidence
under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to
which the witness is expected to testify.” Id. 26(a)(2)(C). These disclosures are “considerably
less extensive than the report[s] required by Rule 26(a)(2)(B),” and courts should take “care against
requiring undue detail.” Id. Adv. Comm. Notes, 2010 amends.
“Although less is required in a [Rule 26(a)(2)(C)] disclosure,” it is not acceptable to
provide scant details. See Barack v. Am. Honda Motor Co., Inc., 293 F.R.D. 106, 108 (D. Conn.
2013) (explaining that a “mere list of names, accompanied by three-word descriptions of the
subject matter of their testimony” is not enough under Rule 26(a)(2)(C)). Nor may the disclosure
only offer part of what is required under the Rules; rather, the disclosure must contain both the
subject matter about which the witness will testify and a summary of the facts and opinions upon
which he or she will rely. See Golding v. City of New York, No. 15-CV-03498 (ALC)(SN), 2016
WL 6553759, at *2 (S.D.N.Y. Nov. 4, 2016) (rejecting, on reconsideration, defendants’ argument
that non-retained expert’s testimony should be permitted because, on the merits, the disclosure
“never offered a summary of the facts and opinions to which he would testify”).
Here, DSS Russo and/or DSS Royce have been identified as experts who will provide
testimony about the UOF Policy based on their specialized knowledge as Deputy Superintendents
of Security within the DOCCS system. Their Rule 26(a)(2)(C) disclosure, in turn, provides the
following information:
Defendants state that Deputy Superintendent of Security Anthony Russo, or other
such experienced security official from Green Haven Correctional Facility . . . may
be called at trial to present testimony regarding correctional facility practices
regarding the use of force, use of force techniques, and training received by
5
correction officers. He will testify that the use of force in this matter was reasonable
and not excessive.
(Decl. of Amy Jane Agnew in Support of Pl. Mot. (“Agnew Decl.”), ECF No. 188, Ex. 1 at 5.) At
bottom, this disclosure fails to withstand scrutiny under the more generous disclosure requirements
of Rule 26(a)(2).
As an initial matter, to the extent a summary of the expert opinion is provided, it seemingly
deals with the ultimate legal conclusion at issue in this matter. Experts, of course, may provide
opinions based on their scientific, technical, or specialized knowledge to help the trier of fact
understand the evidence or determine a fact in issue, but the opinion detailed in Defendants’
disclosure would plainly usurp the jury’s role of resolving the ultimate legal conclusion at the heart
of this case. See Highland Cap. Mgmt., 551 F. Supp. 2d at 184 (concluding that expert testimony
applying “generic legal principles to the facts of the instant case”—such that the expert was “giving
his opinion that the securities law” had been violated—was “not permitted” because it “usurps the
jury’s role in finding the facts and applying those facts to the law as instructed by the court”). In
this regard, the lone summarized opinion (to the extent it can be described as a summary) appears
to be problematic, at best.
Regardless, although courts in the second circuit have not appeared to settle on the precise
level of detail required under Rule 26(a)(2)(c), see RMH Tech LLC v. PMC Indus., Inc., No. 3:18cv-543 (VAB), 2018 WL 5095676, at *7 (D. Conn. Oct. 19, 2018) (comparing costs), Rule 26
plainly contemplates something more from its summary of facts than what Defendants have
offered. Indeed, Defendants have summarized no facts at all. Beyond listing the subject matter of
the proposed testimony, Defendants’ disclosure provides nothing more than a brief statement that
DSS Russo and/or Royce will testify about “the use of force in this matter.” (Agnew Decl. Ex. 2
at 5.) Devoid of any factual information, this threadbare disclosure undermines the very purpose
6
of the rule and prevents Plaintiff from sufficiently preparing for his case. See Anderson v. E. CT
Health Network, Inc., No. 3:12CV785 (RNC), 2013 WL 5308269, at *1 (D. Conn. Sept. 20, 2013)
(precluding expert testimony because disclosure, which was also untimely, did not provide a
summary with “sufficient detail to permit defendants to prepare their defense”). The Court has no
trouble concluding that Defendants have failed to comply with Rule 26(a)(2)(C).2
Having determined that Defendants’ expert disclosure was deficient, the Court proceeds to
its Rule 37 analysis.
b. Preclusion of Russo/Royce’s Testimony
Failure to comply with Rule 26 can subject a party to preclusion under Rule 37(c)(1), which
“provides that a party who fails to make such disclosures [under Rule 26] ‘is not allowed to use
that information or witness to supply evidence . . . unless the failure was substantially justified or
is harmless.” Chevron Corp. v. Donzinger, No. 11 Civ. 0691(LAK), 2013 WL 5493996, at *1
(S.D.N.Y. Oct. 3, 2013) (quoting Fed. R. Civ. Proc. 37(c)(1)). Although Rule 37(c)(1) is “written
in mandatory terms,” the imposition of sanctions for abuse of discovery is “a matter within the
2
Plaintiff also challenges whether DSS Russo or DSS Royce should have provided expert reports under Rule
26(a)(2)(B). (Pl. Mot. 5-8.) As explained above, generally, if an expert is not “specially retained to provide
expert testimony,” there is no need for a party to provide an expert report under Rule 26(a)(2)(B). Bank of
China, N.Y. Branch v. NBM LLC, 359 F.3d 171, 182 n.13 (2d Cir. 2004). But the distinction of whether an
expert is retained or not retained does not turn on “whether the expert is paid or is a volunteer, but whether
the expert is brought into the case to testify.” Caruso v. Bon Secours Charity Health Sys. Inc., No. 14 CV
4447(VB), 2016 WL 8711396, at *7 (S.D.N.Y. Aug. 5, 2016). Here, neither DSS Russo nor DSS Royce
held the position of Deputy Superintendent of Security during the February 1st Incident and were not
specifically involved in the events giving rise to the lawsuit, although DSS Royce purportedly handled the
subsequent disciplinary hearing against Plaintiff (Agnew Decl. Ex. 11). Furthermore, neither DSS Russo nor
DSS Royce are currently employed with Green Haven. It therefore appears they have been brought in as a
result of the litigation to provide their specialized knowledge to the instant facts. For this reason, it is at least
arguable—if not likely—that Defendants ought to have provided expert reports under Rule 26(a)(2)(B). See
Caruso v. Bon Secours Charity Sys., Inc., 703 F. App’x 31, 33 (2d Cir. 2017) (finding that experts report was
required because “the two experts’ only connection to the matter was their being ‘recruited to provide expert
opinion testimony,’”); see also Downey v. Bob’s Discount Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir.
2011) (concluding that expert was not retained or specifically employed for purpose of offering expert
opinion testimony because “his opinion testimony arises not from his enlistment as an expert but, rather, from
his ground-level involvement in the events giving rise to the litigation”). Nevertheless, because Defendants’
disclosures failed to satisfy even the lax standard of Rule 26(a)(2)(C), the Court need not definitively resolve
this issue at this time.
7
discretion of the trial court.” Hein v. Cuprum, S.A., De C.V., 53 F. App’x 134, 136 (2d Cir. 2002)
(citing Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 156 (3d Cir. 1995)).
And in deciding whether to exercise its “wide discretion to impose sanctions,” courts may consider
(1) the party’s explanation for the failure to comply with the disclosure
requirement; (2) the importance of the testimony of the precluded witness [ ];
(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.
Design Strategy, Inc. v. Davis, 469 F.3d 284, 294-96 (2d Cir. 2006) (citation omitted).
Preclusion, however, is a “drastic remedy and should be exercised with discretion and
caution.” NIC Holding Corp. v. Lukoil Pan Americas, LLC, No. 05CIV9372LAKFM, 2007 WL
1467424, at *5 (S.D.N.Y. May 16, 2007) (quoting Martinez v. Port Auth. of N.Y. and N.J., No. 01
Civ. 721 (PKC), 2005 WL 2143333, at *14 (S.D.N.Y. Sept. 2, 2005)). Thus, while not required,
see Design Strategy, Inc., 469 F.3d at 296, courts have often only precluded evidence where there
was “flagrant bad faith” or a “callous disregard of the rules.” See NIC Holding Corp., 2007 WL
1467424 at *5-6 (denying plaintiff’s motion to preclude certain witnesses from testifying at trial
notwithstanding defendant’s failure to identify the individuals in its disclosures, because any
prejudice could be obviated by permitting depositions to take place); Martinez, 2005 WL 2143333
at *15 (noting that, rather than precluding witnesses identified three weeks prior to trial, plaintiff
had been required to make witnesses available for depositions); see also Ritchie Risk-Linked
Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 280 F.R.D. 147, 157 (S.D.N.Y. 2012)
(“While a showing of ‘bad faith’ is not required for preclusion to be ordered under Rule 37(c), a
party’s bad faith ‘can be taken into account’ by the Court in considering the party’s explanation
for its failure to satisfy its discovery obligations.”).
Here, Defendants maintain that their failure to comply with Rule 26(a)(2)(C) “was
substantially justified and/or harmless.” (Defs. Opp. 7.) Defendants primary argument is that the
8
testimony of either DSS Russo or DSS Royce is “necessary in order to provide context and
framework by which the jury may understand not only the realities that law enforcement must be
prepared for on a daily basis in their line of work, but to determine whether Defendants’ response
in this instance was thus reasonable.” (Id. at 7.) Defendants then opine that Plaintiff will suffer
no prejudice because “he has received the Directive regarding use of physical force.” (Id. at 8.)
The Court disagrees. Defendants’ explanation fails to establish the substantial justification or
harmlessness necessary to avoid Rule 37(c)(1) sanctions.
First, Defendants’ explanation—beyond remarkably claiming, in essence, that their
disclosure was a mere courtesy3—does not address why they offered less than the bare minimum
regarding about what either DSS Russo or DSS Royce would testify. Second, although the Court
agrees that this testimony at issue would likely help provide context to jurors related to Defendants’
defense, the importance of either individual’s testimony stems from the context and framing it can
provide the jury regarding the UOF Policy and Defendants’ conduct, rather than its importance to
resolving the ultimate issue of whether Defendants’ conduct amounts to excessive force. Third,
the actual UOF Policy does not enable Plaintiff to adequately prepare for what specialized
knowledge and opinions DSS Russo or DSS Royce would provide at trial or their application to
the facts of the case. Although the actual UOF Policy does delineate guidelines for DOCCS staff
to follow (see Pl.’s Reply to Defs. Opp., ECF No. 202, Ex. 23, at 1), Defendants have represented
that the proposed testimony of DSS Russo or DSS Royce would “attest to . . . the types of
permissible force during a confrontational situation” and dive deeper into the “types of forces that
are reasonable and permissible to use as DOCCS employees when confronted with . . . an inmate
attack.” (Defs. Opp. 5-6.) This proposed testimony seemingly goes beyond the four corners of
3
As further detailed below, this position is wholly at odds with Defendants’ request to preclude witnesses
based on the timeliness of Plaintiff’s Rule 26(a) initial disclosures.
9
the UOF Policy and would understandably require additional preparation by Plaintiff. Finally,
continuance would not be possible with a trial scheduled to commence in just under two weeks.
Notwithstanding the above, the Court concludes that it can fashion a less drastic sanction
than preclusion under Rule 37(c)(1) in the absence of any “bad faith” or “callous disregard” of the
rules. Rather than precluding the testimony of DSS Russo or DSS Royce altogether, the Court
will allow Defendants to offer their testimony for the narrow purposes of explaining the UOF
Policy at DOCCS and the types of forces that DOCCS employees may permissibly use. In other
words, DSS Russo and DSS Royce may only be offered as fact witnesses at trial and cannot offer
any testimony related to whether the use of force in this case was reasonable, or other opinion
testimony related to the facts of this case.
However, given that neither DSS Russo nor DSS Royce served as Deputy Superintendent
of Green Haven during the February 1st Incident, there remains a question of whether either has
the requisite personal knowledge necessary to testify to the UOF Policy in place in 2011. As such,
their testimony is subject to Defendants’ laying the necessary foundation at trial.
In conclusion, Plaintiff’s motion to preclude the testimony of DSS Russo and/or DSS
Royce is GRANTED in part and DENIED in part.
2. Dr. Robert Bentivegna
In addition to Defendants’ expert disclosures of DSS Russo and DSS Royce, Plaintiff also
challenges the adequacy of Defendants’ Rule 26(a)(2)(C) disclosure for Dr. Robert Bentivegna.
(Pl. Mot. 8-11.) Plaintiff maintains that Dr. Bentivegna can testify as a treating physician but
should not be permitted to offer opinion testimony that relies on anything outside of his personal
treatment of Plaintiff. (Id.) The Court agrees.
10
In general, a treating physician may testify to “opinions formed in the course of treatment
without regard to the disclosure requirements of Rule 26(a)(2).” Lewis v. Triborough Bridge, No.
97 CIV. 0607(PKL), 2001 WL 21256, at *1 (S.D.N.Y. Jan. 9, 2001). When acting as an expert,
the physician may testify to “matters beyond plaintiff's course of treatment, i.e., information
acquired from outside sources.” McAfee v. Naqvi, No. 3:14-cv-410 (VAB), 2017 WL 3184171, at
*4 (D. Conn. July 26, 2017).
If a party offers a treating physician as an expert, there is no need to provide a written
expert report under Rule 26(a)(2)(B) “because treating physicians are not ‘retained or specifically
employed to provide expert testimony in the case.’” Id. at *3; see also Reynolds v. Am. Airlines,
Inc., No. 14 CV 2429 (CLP), 2017 WL 5613115, at *6 (E.D.N.Y. Nov. 21, 2017) (“[A] treating
physician need only provide a full written report under Rule 26(a)(2)(B) when ‘circumstances
suggest the doctor was ‘retained or specially employed to provide expert testimony.’”). But a
treating physician’s expert disclosure must meet the requirements of Rule 26(a)(2)(C) if he or she
is to opine on matters outside of his or her treatment. That disclosure must detail (1) the subject
matter on which the physician is expected to testify, and (2) a summary of the facts and opinions
to which the physician is expected to testify.” Fed. R. Civ. Proc. 26(a)(2)(C). Applying this
standard in the treating physician context, courts have looked at whether the disclosure helps the
opposing party and the Court understand what the physician “will offer specifically on the subject
matter for which they were disclosed, in terms of facts and medical opinions.”
McAfee, 2017 WL 3184171 at *5.
If the disclosure is lacking, the physician’s testimony is limited “solely as to the information
he/she has acquired through observation of the Plaintiff in his/her role as a treating physician [and
is] limited to the facts [obtained] in Plaintiff’s course of treatment.” Barack, 293 F.R.D. at 109;
11
see also Ali v. Connick, 11-CV-5297 (NGG) (VMS), 2016 WL 3002403, at *7 (E.D.N.Y. May 23,
2016) (“The key to what a treating physician can testify to without being declared an expert is
based on his/her personal knowledge from consultation, examination and treatment of the Plaintiff,
‘not from information acquired from outside sources.’” (alterations omitted) (quoting Motta v.
First Unum Life Ins. Co., No. CV 09-3674(JS)(AKT), 2011 WL 4374544, at *3 (E.D.N.Y. Sept.
19, 2011)). The physician’s testimony may nevertheless still encompass issues such as causation.
See Mangla v. Univ. of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996) (“[M]erely because
treating physicians may be asked at a deposition to offer opinions based on their examination of a
patient, ‘does not mean that treating physicians do not have an opinion as to the cause of an injury
based upon their examination of the patient or to the degree of injury in the future.’”).
Here, Dr. Bentivegna’s expert disclosure provides the following information:
Robert V. Bentivegna, M.D., employed by the New York State Department of
Corrections and Community Supervision (“DOCCS”) at Green Haven Correctional
Facility . . . may be called at trial as a treating physician to present testimony
regarding the medical care received by Plaintiff as an inmate in DOCCS custody at
Green Haven Correctional Facility. Dr. Bentivegna will testify that he was
Plaintiff’s treating physician while Plaintiff was incarcerated in the Special
Housing Unit (“SHU”) following the February 1, 2011 use of force and that
Plaintiff suffered only minor, superficial injuries from that event.
(Agnew Decl. Ex. 1 at 5.). This disclosure is similar in detail to the disclosure at issue in McAfee
v. Naqvi, in which Plaintiff provided that his “expert” doctors would
testify as to the injuries that the plaintiff sustained to his abdomen and organs when
he was denied reasonable medical attention on the date listed in the complaint
specifically the injuries . . . that led to multiple surgeries. [The Doctors] treated and
examined the plaintiff for the injuries that the plaintiff sustained to his abdomen
and organs when he was denied reasonable medical attention. [T]hey all performed
surgeries on the plaintiff to repair the effects of the denial of medical treatment.
They will state that they are board certified in their specialties and that they have
knowledge of the cost of medical treatment that they performed as well as generally
accepted costs for treatment associated with the case and treatment with the care
and treatment that he was provided and that may be needed in the future. They will
state that he sustained permanent disabilities as a result of the denial of medical
attention and the location of the permanency.
12
McAfee, 2017 WL 3184171 at *3. Faced with this, the court determined that the disclosure “failed
to contain ‘a summary of the facts and opinions to which the witness is expected to testify.’” Id.
at *5 (quoting Fed. R. Civ. P. 26(a)(2)(C)). As a result, the court precluded the doctors’ testimony
to the extent that it went “beyond their actual treatment of” plaintiff. Id. The Court reasoned that
the disclosure provided nothing to help the Defendants or the Court “understand what any of these
treating physicians will offer specifically on the subject matter for which they were disclosed, in
terms of facts and medical opinions.” Id. In the end, the Court found that the disclosure only
provided “mere generalities,” such that it simply could not satisfy even the relaxed disclosure
requirements of Rule 26(a)(2)(C). Id. at *6.
Like the court in McAfee, the Court here concludes that Dr. Bentivegna’s expert disclosure
is plainly lacking under Rule 26(a)(2)(C). Although the description does provide the general
subject matter of Dr. Bentivegna’s proposed testimony, it provides no indication—beyond “mere
generalities”—of the specific facts to which Dr. Bentivegna intends to testify and provides bareminimum details of opinions formed therefrom. There is simply no way for Plaintiff to have had
“a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert
testimony from other witnesses” based on the nature of this expert disclosure. Fed. R. Civ. Proc.
26, Adv. Comm., 1993 amend. Nor does this disclosure provide “fair notice of the basis” for Dr.
Bentivegna’s expected testimony and scope, Geary v. Fancy, No. 12-CV-796W(F), 2016 WL
1252768, at *3 (W.D.N.Y. Mar. 31, 2016), or realistically allow Plaintiff to “prepare their defense”
against potential expert opinions, McAfee, 2017 WL 3184171 at *5.
In sum, Plaintiff’s motion in limine to limit Dr. Bentivegna’s testimony is GRANTED. Dr.
Bentivegna will be permitted to testify as a treating physician at trial. He can offer opinions and
conclusions based on his treatment of Plaintiff following the February 1st Incident, which includes
13
any medical records consulted at that time. Dr. Bentivegna, however, may not opine on any
information or conclusions derived outside of the scope of his treatment.
3. Dr. Gregory Mazarin4
Plaintiff contends that, upon the dismissal of Plaintiff’s retinal detachment claim, Dr.
Gregory Mazarin’s remaining opinion is nothing more than a legal conclusion. (Pl. Mot. 12.)
Defendants rebut Plaintiff’s position, averring that Dr. Mazarin “will testify as to the nature and
extent of Plaintiff’s injuries,” notwithstanding the “inartful” language in his report. (Defs. Opp.
12.) As will be explained, at this juncture, Dr. Mazarin need not be precluded as a witness. His
testimony, however, cannot encompass legal conclusions and must be confined to the opinions in
the report submitted.
In general, district courts must determine whether an “expert’s testimony (as to a particular
matter) will ‘assist the trier of fact.’” Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir.
2005). To this end, “although [] expert[s] may opine on an issue of fact within the jury’s province,
[they] may not give testimony stating ultimate legal conclusions based on those facts.” United
States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991); see also Hygh v. Jacobs, 961 F.2d 359,
364 (2d Cir. 1992) (“Whereas an expert may be uniquely qualified by experience to assist the trier
of fact, he is not qualified to compete with the judge in the function of instructing the jury.”). Put
differently, even though an opinion will not be objectionable just because it embraces an ultimate
issue, Fed. R. Evid. 704(a), “‘expert testimony that expresses a legal conclusion’ must [] be
4
Plaintiff argues that Dr. Mazarin cannot offer any expert testimony related to Plaintiff’s dismissed retinal
detachment claim. (Pl. Mot. 14.) Defendants, for their part, contend that “[u]pon Plaintiff’s representation
that he will not introduce any such evidence at trial, Defendants will not solicit evidence about Dr. Mazarin’s
assessment.” (Defs. Opp. 10 n.4.) As there does not appear to be any meaningful disagreement on this point,
the Court will GRANT this branch of Plaintiff’s motion.
14
excluded.” Hewitt v. Metro-North Commuter R.R., 244 F. Supp. 3d 379, 393 (S.D.N.Y. 2017)
(quoting Hygh, 961 F.3d at 363).
Here, Dr. Mazarin’s remaining opinion is that “there was no evidence of excessive force
utilized” in the February 1st Incident. (Agnew Decl. Ex. 12 at 1.). Although Dr. Mazarin’s cannot
solely opine on whether Defendants used excessive force, see Horvath v. City of New York, No.
12 CV 6005(RJD)(JMA), 2015 WL 1757759, at *8 (E.D.N.Y. Apr. 17, 2015) (“Dr. Jubanyik may
not testify as to who assaulted plaintiff, render ultimate legal conclusions—such as whether
excessive force was used—[]or regurgitate plaintiff's account of the events at issue.”), the Court is
hesitant to entirely preclude Dr. Mazarin’s testimony to the extent Defendants believe he can still
offer an opinion of the nature and extent Plaintiff’s injuries without encroaching upon a legal
conclusion.5 Therefore, the Court shall preliminarily DENY Plaintiff’s motion to the extent it
requests complete preclusion. Plaintiff may re-raise his objections on this issue at the appropriate
time during trial if Defendants are unable to lay the proper foundation for admissibility of Dr.
Mazarin’s testimony. Plaintiff may also challenge Dr. Mazarin’s testimony to the extent it will, in
fact, be cumulative of other testimony at trial.
B. Plaintiff’s Motion to Preclude Certain Documents and Statements as Hearsay
Plaintiff seeks to exclude “five documents and parts of documents prepared or containing
information supplied by corrections officers” involved in the February 1st Incident, primarily on
the basis of a lack of sufficient indicia of reliability. (Pl. Mot. 16-18 (citing Agnew Decl. Exs. 49.) Plaintiff also requests the exclusion of information contained in an Employee Accident Report
5
The testimony must be cabined to the specific contents of his report. See LaSalle Bank Nat. Ass’n v. CIBC
Inc., No. 08 Civ. 8426(WHP)(HBP), 2012 WL 466785, at *9 (S.D.N.Y. Feb. 14, 2012); Taylor v. Evans, No.
94 Civ. 8425 (CSH), 1997 WL 154010, at *2 (S.D.N.Y. Apr. 1, 1997) (“An expert cannot testify on a matter
not disclosed in his preliminary report. That report must state ‘the testimony the witness is expected to
present during direct examination.’”) As trial is scheduled in just under two weeks, the Court will decline to
allow Defendants to amend Dr. Mazarin’s expert report.
15
“memorializing Defendant Bresett’s injuries.” (Id.) Because the proposed Joint Pre-Trial Order
(“JPTO”) does not identify any of the documents that Plaintiff seeks to preclude, (see ECF No.
208 at 10), the Court DENIES Plaintiff’s motion as moot.
C. Plaintiff’s Motion to Preclude Cumulative Testimony of Officers Only Present for His
Stop and Frisk
Plaintiff seeks to preclude the testimony of several corrections officers “who were present
for the strip search” of Plaintiff following the February 1st Incident, contending that their
testimony would be needlessly cumulative given the video evidence of the strip search. (Pl. Mot.
19-21.) Defendants, however, ask the Court to reserve its decision until after the strip-search video
is shown at trial. (Defs. Opp. 13-14.) As Defendants explain, the witnesses’ testimony may be
“necessary to provide evidence that the video otherwise does not clearly show.” (Id. at 14.)
Under Federal Rule of Evidence 403, a “district judge has discretion to exclude evidence
if it is cumulative of evidence already in the record.” See Int’l Minerals and Res., S.A. v. Pappas,
96 F.3d 586 (2d Cir. 1996). Relevant considerations include whether the testimony or evidence
would be “unnecessary” or “would be a waste of time.” See Highland Cap. Mgmt., 551 F. Supp.
2d at 184.
Here, without having had an opportunity to view the video evidence referenced by both
Plaintiff and Defendants, the Court cannot determine whether additional testimony would
implicate Rule 403’s balancing test. The Court will reserve its decision on the admissibility of
testimony by Lieutenant D. Carey, C.O. M. Frasler, Sergeant D. Kaufman, C.O. MacIsaac, and
C.O. J. Rodriguez until trial, where the cumulative nature of any or all of these individual’s
testimony can be properly assessed in context. See Boykin v. Western Express, Inc., No. 12-cv7428 (NSR) (JCM), 2016 WL 8710481, at *11 (S.D.N.Y. Feb. 5, 2016) (“The Court reserves
16
judgment on the admissibility of the testimony regarding the physicians' statements until trial,
where the purpose for which the statement is offered can be properly assessed in context.”).
D. Plaintiff’s Motion to Preclude Defendants from Impeaching Plaintiff with His Criminal
Convictions
As Plaintiff previously briefed this issue in error under Federal Rule of Evidence 609(b),
Plaintiff’s arguments against precluding Defendants from impeaching Plaintiff with his criminal
history on cross examination primarily appear in his brief in opposition to Defendants’ motion in
limine. In that context, Plaintiff argues that the prejudice of his murder, attempted murder, and
robbery convictions substantially outweigh their probative value. (Pl.’s Opp’n to Defs. Mot. (“Pl.
Opp.”), ECF No.196, at 7.) Defendants, for their part, argue that the impeachment value of
Plaintiff’s conviction bears strongly on Plaintiff’s veracity and is necessary in light of the “decisive
importance” of Plaintiff’s credibility. (Defs. Opp. 14-17.) Ultimately, the Court holds that
Defendants may offer evidence that Plaintiff has convictions and provide limited details about the
length of incarceration Plaintiff faced because of to those convictions. They may not, however,
identify his specific convictions, the actual length of the sentence, or offer any details of their
underlying nature.
A testifying party’s veracity may be impeached through the use of his or her criminal
history if the probative value of the conviction is substantially outweighed by its prejudicial effect.
Fed. R. Evid. 609(a)(1)(A) (explaining that evidence of a criminal conviction for a crime that was
punishable by death or by imprisonment for more than one year must be admitted in a civil case,
subject to Rule 403).6 When balancing the probative value of a conviction against its prejudicial
6
Where the crime involves a dishonest act or false statement, then the evidence must be admitted regardless
of the punishment. Id. 609(a)(2). Here, none of the crimes for which Plaintiff was convicted—murder,
attempted murder, and robbery—involved dishonesty or a false statement. See, e.g., Lewis v. Velez, 149
F.R.D. 474, 481 (S.D.N.Y. 1993) (“Neither drug crimes nor assault involve dishonesty or false statement”);
Eng v. Scully, 146 F.R.D. 74, 78 (S.D.N.Y. 1993) (“Murder is not necessarily indicative of truthfulness”).
17
effect, courts will examine four factors: “(1) the impeachment value of the prior crime, (2) the
remoteness of the prior conviction, (3) the similarity between the past crime and the conduct at
issue, and (4) the importance of the credibility of the witness.” Daniels v. Loizzo, 986 F. Supp.
245, 450 (S.D.N.Y. 1997) (citing 4 Weinstein’s Fed. Evid. § 609.04[2][a], at 609-20 (1997); United
States v. Hayes, 553 F.2d 824, 828 (2d Cir. 1997)).
Turning to the first factor, “Rule 609(a)(1) presumes that all felonies are at least somewhat
probative of a witness’s propensity to testify truthfully.” United States v. Estrada, 430 F.3d 606,
616 (2d Cir. 2005). But courts have held that murder is “not necessarily indicative of truthfulness,”
Eng, 146 F.R.D. at 78.
Moreover, the probative value of such convictions generally “is
substantially outweighed by the danger of unfair prejudice.” Id. Similarly, convictions for other
crimes of force, i.e., “arson, burglary, armed robbery, illegal possession of a firearm, and assault
and battery” are not particularly “probative of credibility for purposes of Rule 609.” See Hartman
v. Sneiders, No. 04 CV 1784 (CLP), 2010 WL 11626508, at *12 (E.D.N.Y. Jan. 28, 2010)
(collecting cases). As such, the first factor weighs against admitting Plaintiff’s convictions.7
Regarding the second factor, although Plaintiff is currently incarcerated on an
indeterminate sentence for his convictions, it has still been approximately thirty-two years since
the date (1987) he was convicted. Thus, even if serious enough to warrant multiple decades of
7
Defendants seem to argue that Plaintiff’s convictions have impeachment value based on the “planning or
preparation” implicated by them. (Defs. Opp. 15.) In support, Defendants cite to Somerville v. Saunders,
No. 9:11-cv-556 (MAD/DEP), 2014 WL 272415 (N.D.N.Y. Jan. 24, 2014), which notes the same point.
Presumably, Defendants are referring to Plaintiff’s first-degree robbery conviction in making this assertion,
as Plaintiff was not actually involved in the murder. However, a review of the applicable statutory provision
reveals that a crime of robbery does not require “planning or preparation” to render a conviction. Rather, the
elements of robbery in the first degree are that a defendant “forcibly steals property,” and either (1) “[c]auses
serious physical injury to any person who is not a participant in the crime,” (2) “[i]s armed with a deadly
weapon,” (3) “[u]ses or threatens the immediate use of a dangerous instrument,” or (4) “[d]isplays what
appears to be a” firearm. See N.Y. Penal Law § 160.15. Thus, Defendants’ contention lacks merit.
18
incarceration (which Plaintiff has yet to complete), Plaintiff’s conviction is quite remote in time.
This factor weighs against admission.
The third factor, similarity of the crimes to the alleged conduct, also weighs against
admission. Indeed, robbery and murder are crimes of force that are quite similar to conduct
implicated by Plaintiff’s “excessive force” claim and Defendants’ defenses.
See Brown v.
Turriglio, No. 9:17-cv-175 (BKS/DJS), 2018 WL 4565767, at *3 (N.D.N.Y. Sept. 24, 2018)
(“Plaintiff’s convictions, attempted robbery and possession of a weapon, as crimes of force are
similar to the conduct at issue here, excessive force.”); Somerville, 2014 WL 272415 at *10 (“The
Court is persuaded that the jury is likely to draw the inference from the nature of Plaintiff's
convictions [of murder, conspiracy, criminal facilitation, robbery, weapons, and possession of
weapons] that he has the propensity to engage in violent behavior.”). Because Defendants’ defense
is that they used a reasonable amount of force “to restrain a non-compliant inmate,” and that “any
injury was “brought about by Plaintiff’s own culpable conduct” (ECF No. 208 at 4), there is a risk
that the jury might consider Plaintiff’s convictions to be probative of aggressive behavior rather
than using the convictions to evaluate his credibility. See Brown, 2018 WL 4565767 at *3; see
also Dougherty v. Cty. of Suffolk, No. CV 13-6493 (AKT), 2018 WL 1902336, at *4 (E.D.N.Y.
Apr. 20, 2018) (finding that “the disclosure of the robbery convictions forecasts substantial
prejudice to the Plaintiff in the prosecution of his claims for deliberate indifference to his safety
and medical needs” because the nature of these crimes invites “visceral prejudice”).
Finally, the fourth factor weighs heavily in favor of admission. As Defendants explain, the
parties will be testifying to “radically divergent” accounts of what transpired during the February
1st Incident. (Defs. Opp. 16.) As such, credibility of the parties, including Plaintiff, will be “of
19
decisive importance” for a jury that is tasked with discerning who is telling the truth. See Loizzo,
986 F. Supp. at 250-51.
Given the importance of Plaintiff’s testimony in this case, the Court will permit Defendants
to offer evidence of his prior convictions for impeachment purposes. However, it is clear from the
above analysis that the Rule 403 balancing test would otherwise have cautioned against admitting
evidence of Plaintiff’s specific convictions or the underlying nature of those crimes. This is
particularly because of the minimal probative value accorded to convictions of murder, attempted
murder, and robbery, as well as the significant prejudice that those convictions entail. For this
reason, the Court will exercise its discretion by permitting Defendants to cross-examine Plaintiff
about the fact that he is a convicted felon serving an indeterminate sentence greater than 25 years.
Defendants, however, may not offer evidence regarding the specific offenses charged, the actual
length of the sentence, or the underlying details of the offense. See Young v. Calhoun, No. 85 CIV.
7584 (SWK), 1995 WL 169020, at *4 (S.D.N.Y. Apr. 10, 1995) (“While Young’s prior felony
conviction is relevant to his credibility, however, evidence concerning the type of crime for which
he is incarcerated is not necessary to impeach his credibility. Accordingly, defendants may crossexamine plaintiff concerning the fact that he is a convicted felon serving a sentence of twenty years
to life, but they may not elicit any details as to the nature of the offense.”). In sum, Plaintiff’s
motion is GRANTED in part and DENIED in part.
E. Plaintiff’s Motion to Preclude Defendants from Impeaching Plaintiff with His
Disciplinary History
Plaintiff argues that evidence of the “disciplinary infractions” should be excluded at trial.
(Pl. Mot. 24.) For their part, Defendants have, in fact, also sought to preclude evidence of
Plaintiff’s disciplinary history. (Defs. Mot. 12.) As Plaintiff and Defendants appear to agree on
precluding this evidence, the Court grants both parties’ motion.
20
Plaintiff also seeks to preclude any evidence of the “disciplinary findings of violent
conduct, assault on staff and interference” that Plaintiff was charged with related to the February
1st Incident (Pl. Mot. 25), and Defendants do not appear to have addressed this contention. To the
extent this issue is not covered in the above ruling, the Court will preliminarily GRANT that
portion of Plaintiff’s motion as unopposed. See Castro v. City of New York, No. 05 Civ. 593
(KTD) (MHD), 2010 WL 11586591, at *7 (S.D.N.Y. Aug. 11, 2010) (granting motion to exclude
testimony where plaintiff failed to address defendants’ arguments to preclude it).
Defendants’ Motions in Limine
II.
A. Defendants’ Motion to Preclude Plaintiff from Offering at Trial Previously Unidentified
Witnesses Listed in His Belated Rule 26(a)(1) Disclosure
Although Plaintiff began this action pro se, the Court granted Plaintiff’s request for counsel
on December 13, 2018 following its resolution of the party’s summary judgment motions. (ECF
No. 153.) Then, on January 11, 2019—well after discovery had been completed—Plaintiff’s
newly appointed counsel filed her notice of appearance. (ECF No. 158.)
Upon being retained, Plaintiff’s counsel pursued targeted discovery requests from
Defendant.8 As part of her efforts to facilitate that request, Plaintiff’s counsel conferred with
opposing counsel to draft a confidentiality stipulation. (Decl. of Colleen K. Faherty in Support of
Defs. Mot. (“Faherty Decl.”), ECF No. 190, Ex. B, at 2-3.) On July 1, 2019, during the course of
negotiating the stipulation, Defendants’ counsel represented that “even though this case started out
pro se, and therefore Local Rule 33.2 applied, Defendants are now providing counsel with a FRCP
8
On March 7, 2019, Plaintiff’s counsel requested to seek a “written request of any and all discovery she
believes is necessary for purposes of representing her client,” which the Court permitted the understanding
that it was reasonable to reopen discovery on a limited basis. (ECF No. 167 at 7-8.) During the May 15,
2019 hearing, the Court then directed Defendants to engage in limited, targeted discovery in light of the
interrogatory requests Plaintiff had served on Defendants on March 10, 2019.
21
26 disclosure.”9 (Id. at 2.) In response, on July 2, 2019, Plaintiff’s counsel represented that she
would also “get [Defendants’ counsel] a Rule 26 Disclosure” by July 15, 2019. (Id. at 1.)
Notwithstanding her representation, however, Plaintiff’s counsel did not provide disclosures until
September 28, 2019.10 (Defs. Mot. 2.)
Defendants now argue that Plaintiff’s “last minute” pretrial initial disclosure warrants
preclusion of three witnesses: Douglas Holland, Keith Schmitt, and Jabbaris Dove. (Defs. Mot. 29.) The Court disagrees.11 There is no basis in either the purpose of the rule or its case law to
conclude that Rule 26(a)(1)’s initial disclosure requirements rigidly apply (regardless of the
procedural posture of the litigation) upon the assignment of counsel to a previously pro se litigant.
Under Rule 26, a party must, without awaiting a discovery request, provide the other party
with, inter alia, “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. Proc. 26(a)(1)(A). This initial disclosure must take place “at or within
14 days after the parties’ Rule 26(f) conference,” or “30 days after” a party is served or joined, if
after the Rule 26(f) conference. Id. 26(a)(1)(C). The purpose of this initial disclosure requirement
9
10
11
Local Rule 33.2 provides that, in a use-of-force action commenced by a pro se plaintiff, Defendants are
required to respond to standing discovery requests adopted by the Court, denominated “Plaintiff’s Local Civil
Rule 33.2 Interrogatories and Requests for Production of Documents,” within 120 days of service of the
complaint. N.Y. Dist. Ct. R. S.&E.D.N.Y., Local Civ. R. 33.2(a), (b)(1), (d). The Rule explains that “[e]xcept
upon permission of the Court, for good cause shown, the requests shall constitute the sole form of discovery
available to plaintiff during the 120-day period.” Id. 33.2(e).
Plaintiff’s three-page disclosure identified (1) a list of individuals who are likely to have discoverable
information, (2) the documents in his possession upon which he may rely; and (3) Plaintiff’s computation
of damages. (Faherty Decl. Ex. A.)
The Court again notes that Defendants have essentially contradicted themselves in their opposition to
Plaintiff’s motion in limine. (Defs. Opp. 7 (“As the Court is aware, this matter was initiated by an
incarcerated pro se plaintiff and therefore initial disclosures were not required. Plaintiff was appointed pro
bono counsel after discovery in this matter was closed. Notwithstanding, and in good faith, Defendants
provided Rule 26 disclosures to Plaintiff on July 1, 2019.”). Simply put, Defendants cannot have their cake
and eat it, too.
22
is to “require early disclosure of . . . information that ha[d] been customarily secured early in
litigation through formal discovery,” thereby “eliminat[ing] certain discovery, help[ing] focus the
discovery that is needed, and facilitat[ing] preparation for trial and settlement.” Id. Adv. Comm.
Notes, 1993 amend. Failure to comply with these disclosure requirements is sanctionable under
Rule 37, but as explained above, such a failure can be excused if substantially justified or otherwise
harmless. See Design Strategy, Inc., 469 F.3d at 297. As relevant here, Rule 26’s initial disclosure
requirements do not apply to actions “brought without an attorney by a person in the custody of
the United States, a state, or a state subdivision.” Fed. R. Civ. Proc. 26(a)(1)(B)(iv).
To be sure, the Rules do not specify what happens in the event that counsel is later
appointed or hired, nor has this Court identified any case law in this circuit that provides guidance
in this narrow factual scenario. Nevertheless, after a review of the rule and its underlying purposes,
the Court concludes that preclusion of any witnesses identified in Plaintiff’s Rule 26(a)(1)
disclosure is not warranted. By the time these disclosures had been made, discovery was
completed (absent the limited discovery requests made after pro bono counsel’s appointment).
Plainly, Defendants’ interpretation of Rule 26(a)(1) would unjustly punish a previously pro se
litigant for acquiring pro bono counsel after end of discovery in a case.12
12
This view is not contrary to the Court’s decision regarding Defendants’ expert disclosures. The two
disclosures have separate timing requirements, and, in this particular case, the Rule 26(a)(2) disclosures were
not due until several months after pro bono counsel had been retained. Compare Fed. R. Civ. P. 26(a)(1)(C)
(14 days after parties’ Rule 26(f) conference) with id. 26(a)(2)(D) (at least 90 days prior to the date set for
trial). The two disclosures also serve distinct purposes, such that, upon a pro se litigant eventually obtaining
counsel after discovery period had closed, it is reasonable to hold parties accountable for disclosures under
the expert disclosure requirements but not the initial disclosure requirements. Compare id. Adv. Comm.
Notes, 1993 amend. (“As the functional equivalent of court-ordered interrogatories, this paragraph requires
early disclosure, without need for any request, of four types of information that have been customarily
secured early in litigation through formal discovery.”) with id. (“[Paragraph 2 of Rule 26] imposes an
additional duty to disclose information regarding expert testimony sufficiently in advance of trial that
opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps
arrange for expert testimony from other witnesses.”).
23
Defendants’ reliance on out of circuit opinions such as Harris v. Hogle, No. 05-cv-815,
2010 WL 2302309 (W.D. Mich. June 4, 2010), and Meneweather v. Powell, No. C 07-4204, 2011
WL 13209593 (N.D. Cal. Dec. 13, 2011), does not compel a different result. In Harris, the
previously pro se litigant had acquired representation prior to the expert disclosure deadline set by
Rule 26(a)(2)(D).13 Conversely, pro bono counsel here began representing Plaintiff well after the
initial discovery period had passed. Likewise, in Meneweather, counsel for the previously pro se
plaintiff had been appointed prior to the “initial Case Management Conference.”14 Again, in this
case, Plaintiff’s counsel was appointed well after the close of discovery in this matter.
In any event, the “delayed” disclosure was harmless. First, as will be discussed below, the
Court will grant Defendants’ motion with respect to Douglas Holland and Keith Schmitt, thereby
obviating, for now, any issues related to these witnesses. Second, the Court finds that, based on
the content of the documents produced by Defendants, which includes a letter written by Jabbaris
Dove and Douglas Holland’s interview of Dove (see, e.g., Decl. of Amy Jane Agnew in Opp’n to
Defs. Mot., ECF No. 195, Exs. 13-14; see also ECF No. 174 ¶ 1), Defendants would have had
sufficient notice of the identity of Jabbaris Dove and awareness of the context and subject matter
of his potential testimony. See Preuss v. Kolmar Labs., Inc., 970 F. Supp. 2d 171 (S.D.N.Y. 2013)
(failure to disclose certain witnesses harmless where Plaintiff had served document requests
seeking files related to the witness, and a memorandum written by witness was entered into as an
exhibit during a deposition); Mugavero v. Arms Acres, Inc., 2009 WL 1904548, at *5 (S.D.N.Y.
13
14
The opinion refers to Rule 26(a)(2)(C), which was formerly the rule that provided timing under Rule 26(a)(2).
A brief review of the history of Meneweather indicates that Defendants had answered Plaintiff’s complaint,
and then moved for summary judgment that same day. Meneweather v. Powell, No. C 07-04204 SBA (PR),
2009 WL 10681172, at *1 (N.D. Cal. Sept. 30, 2009). The court initially granted summary judgment in
Defendants’ favor, but the Court of Appeals for the Ninth Circuit reversed the decision. See Meneweather
v. Powell, 417 F. App’x 656 (9th Cir. 2011). After the appeal, counsel was appointed for plaintiff.
24
July 1, 2009) (failure to disclose witnesses harmless where Defendants had reason to know during
discovery period that witnesses would have information relevant to Plaintiff’s claims).
Having concluded that Plaintiff’s delay in providing a Rule 26(a)(1) initial disclosure does
not warrant preclusion of the witnesses listed therein, the Court now turns to Defendants’ specific
motions in limine challenging the admissibility of testimony from Jabbaris Dove, Douglas
Holland, and Keith Schmitt.
1. Jabbaris Dove
a. Offering Dove as Rebuttal Witness
Defendants argue that Jabbaris Dove should not be allowed to testify as a “rebuttal witness”
at trial because (1) “there is no procedural mechanism by which Plaintiff can reliably demand a
‘rebuttal case’ for trial”, and (2) the proposed rebuttal testimony lacks indicia of personal
knowledge and would only “serve[] to inflame the jury and prejudice Defendants.” (Defs. Mot. 57.) Plaintiff argues that he will only offer Dove on rebuttal should Defendants’ open the door by
contradicting Plaintiff’s assessment of the duration of the February 1st Incident. (Pl. Opp. 4-5.)
The “function of rebuttal evidence is to explain or rebut evidence offered by an opponent.”
United States v. Tejada, 956 F.2d 1256, 1266 (2d Cir. 1992), cert. denied, 506 U.S. 841 (1992);
see also Lidle v. Cirrus Design Corp., No. 08 Civ. 1253(BSJ)(HBP), 2009 WL 4907201, at *1 n.1
(S.D.N.Y. Dec. 18, 2009) (describing “rebuttal evidence” as “evidence offered by the plaintiff . . .
to contradict new issues raised by the evidence offered by the defendant.”). “[R]ebuttal is
necessarily a flexible concept and [] trial judges are uniquely situated to assess the impact certain
evidence or arguments have made on a jury.” United States v. Barrow, 400 F.3d 109, 120 (2d Cir.
2005). For this reason, it is “well-settled that ‘[a] district court has wide discretion in determining
25
whether to permit evidence on rebuttal.” F.D.I.C. v. Suna Assocs., Inc., 80 F.3d 681, 687-88 (2d
Cir. 1996) (quoting Tejada, 956 F.2d at 1266).
Here, although it has previously questioned the relevance of this potential witness, the
Court will reserve its decision at this time. This issue is dependent on what will transpire at trial,
such that a ruling now would require the Court to “speculate as to the nature of the testimony that
might open the door to” any rebuttal testimony. Giles, 2000 WL 1425046 at *2.
b. Impeachment of Dove with His Criminal History
Defendants have argued that, should this Court permit Dove to testify, they should be
permitted to impeach his veracity with a prior conviction for murder in the second degree. As
previously explained, a witness’s veracity may be impeached through the use of his or her criminal
history if the probative value of the conviction is not substantially outweighed by its prejudicial
effect. Fed. R. Evid. 609(a)(1)(A). Here, the Court will preliminary reach the impeachment issue
even though it has reserved its opinion on whether Dove can testify. To that end, an application
of balancing test leads this Court to conclude that Defendants may impeach Dove regarding his
murder conviction, albeit with certain limitations.15
The first factor cuts against allowing the conviction to be offered for impeachment. To be
sure, Dove’s murder conviction may not directly implicate veracity, but it is nonetheless probative
of his credibility because it may “remove[] any misperception that [he] is a model citizen.” See
Young, 1995 WL 169020 at *4. However, a conviction of murder certainly carries a risk of unfair
bias against a testifying witness. Id. And such convictions “are generally not probative as to
honesty or veracity.” Somerville, 2014 WL 272415 at *8. The second factor, remoteness, likely
15
Stated again, the relevant factors courts look to under Rule 403 are as follows: “(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.” Loizzo, 986 F. Supp. at 250.
26
would cut against impeachment. Even though Dove is currently incarcerated, his conviction
occurred twenty-four years ago. The third factor—the similarity of the witness’s conduct in the
instant litigation and the conviction at issue (or lack thereof)—favors admission. Here, Dove’s
murder conviction is not particularly similar to the conduct to which he would testify in this matter,
i.e., his perception of what occurred during the February 1st Incident. Finally, the importance of
the witness’s credibility also favors admission. Dove’s credibility is certainly critical because he
would be used to rebut a factual representation made during the Defendants’ case in chief.
After weighing the relevant considerations, and in light of the importance of Dove’s
credibility, Defendants’ may challenge Dove’s veracity with his conviction should he testify at
trial. However, given the relatively minimal probative value of murder on veracity compared to
the unfair bias it may create, as well as general the remoteness of the conviction, the Court will
limit impeachment to the fact that he has a conviction and the sentence it entailed. See Giles v.
Rhodes, No. 94 CIV. 6385(CSH), 2000 WL 1510004, at *2 (S.D.N.Y. Oct. 10, 2000). Defendants’
motion on this issue is GRANTED in part and DENIED in part.
2. Douglas Holland
Defendants seek to preclude the testimony of Douglas Holland, an investigator with the
Office of Special Investigations (“OSI”). (Defs. Mot. 3.) Defendants contend that the likely
evidence to which Holland would testify is not relevant and/or would constitute inadmissible
hearsay, particularly because Holland lacks direct knowledge of the February 1st Incident and his
knowledge was obtained through various interviews during his investigation.
(Id. at 4.)
Alternatively, if permitted to testify, Defendants request that Holland be allowed to provide
opinion testimony under Rule 701. (Id.)
27
In his opposition, Plaintiff contends that Holland will be offered for a “very limited
purpose: the authentication of the statements in the OSI file.” (Pl. Opp. 4.) Defendants, however,
have represented that they will “not challenge the authenticity of” OSI file. (Defs.’ Reply to Pl.
Opp. (“Defs. Reply”), ECF No. 204, at 7.) Because the sole purpose for which Plaintiff would
offer Holland appears to be moot, the Court finds that the proposed testimony lacks any relevance,
see Fed. R. Evid. 901, Adv. Comm. Notes (“Authentication and identification represent a special
aspect of relevancy.”), and it tentatively GRANTS Defendant’s motion on that limited ground. If
Defendants do choose to contest the authenticity of the OSI file, Plaintiff may introduce Holland
for the limited purpose of authentication, and if Plaintiff chooses to offer testimony beyond
authentication, Defendants are free to re-raise their objections to his testimony at that time.
3. Keith Schmitt
Finally, Defendants seek to preclude the testimony of Keith Schmitt “because his only
purpose” would be to “authenticate documents—the authenticity of which Defendants do not
dispute.” (Defs. Mot. 5.) Plaintiff, however “has no intention of calling Keith Schmitt.” (Pl. Opp.
3.) Defendants’ motion is DENIED as moot.
B. Defendants’ Motion to Impeach Plaintiff with His Criminal History
For the reasons specified in this Court’s analysis of Plaintiff’s motion to preclude the use
of his criminal history for impeachment purposes, the Court GRANTS Defendants’ motion in part
and DENIES Defendants’ motion in part.
C. Defendants’ Motion to Preclude Exhibits 1, 13, and 17
Defendants argue that Plaintiff may not introduce into evidence various logbooks, which
they maintain are inadmissible hearsay. (Defs. Mot. 10-11.) Defendants also contend that any
entries were made by individuals who lacked personal knowledge of the events described therein.
(Id. at 10.) Plaintiff counters that the logs are admissible as business records, and that any issues
28
of trustworthiness related to the content of the logs is diminished by DOCCS’s integration of the
logs “into company records during the ordinary course of business.” (Pl. Opp. 8-9.)
Under Federal Rules of Evidence 801 and 802, hearsay is not admissible if offered to prove
the truth of the matter asserted in the statement. However, business records, even if hearsay, are
admissible if the following elements are met:
“(A) the record was made at or near the time by—or from information transmitted
by—someone with knowledge; (B) the record was kept in the course of a regularly
conducted activity of a business, organization, occupation, or calling, whether or
not for profit; (C) making the record was a regular practice of that activity; (D) all
these conditions are shown by the testimony of the custodian or another qualified
witness . . . ; and (E) the opponent does not show that the source of information or
the method or circumstances of preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6).
Here, Plaintiff maintains that the evidence in question could be admitted under the business
records exception and points to several authorities supporting his position. In fact, various courts
have found that logbooks can constitute business records if they otherwise meet the applicable
standard under Rule 803. See, e.g., United States v. Reyes, 157 F.3d 949, 952-53 (2d Cir. 1998)
(“Reyes makes three arguments that the district court erred in admitting the prison visitor logbook
under Rule 803(6). Each argument fails.”); Gulf S. Mach., Inc. v. Kearney & Trecker Corp., 756
F.2d 377, 381 (5th Cir. 1985) (holding that district court did not abuse its discretion in admitting,
under Rule 803(6), a logbook of mechanical malfunctions); Cano v. City of New York, 119 F. Supp.
3d 65, 85 n.1 (E.D.N.Y. 2015), aff’d in part and vacated in part on other grounds, Darnell v.
Pineiro, 849 F.3d 17 (2d Cir. 2017) (noting that logbook of maintenance performed at an arrest
facility was admissible as a business record under Rule 803(6)).
The above notwithstanding, Defendants contend that the logbooks are inadmissible
because they contain entries “that are written by officers who were not present to witness those
events and therefore could only have reproduced them in those logs based upon statements by
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others.”16 (Defs. Mot. 10.) The Second Circuit, however, has rejected a similar challenge to what
amounts to an attack on the trustworthiness of particular records. Specifically, in United States v.
Reyes, defendant had argued that the “business record exception [was] inapplicable because prison
visitors who write their names in the logbook ha[d] no business duty to provide the information,”
which, defendant argued, would remove the logs from Rule 803(6)’s umbrage. 157 F.3d at 952.
The Second Circuit made it clear that so long as someone had a duty to verify the information
contained therein, the business record exception can still apply even where the third party
providing the information had not duty to report it. Id. And because the district court had found
that testimony presented at trial “was sufficient to show that the logbook was kept under a duty of
accuracy,” the Second Circuit concluded that the district court did not abuse its discretion by
admitting the logbook as a business record.17 Id. at 953.
Nevertheless, at this juncture, Plaintiff has yet to formally lay a foundation for admitting
of Exhibits 1, 13, or 17 at trial. Nor has Plaintiff—beyond arguing that he should “be able to admit
Exhibits 1 and 13 for impeachment or other purposes” (Pl. Opp. 9)—even indicated the actual
purpose for which he will use the exhibits at trial. Accordingly, the Court will reserve its decision
on Defendants’ objection to these exhibits until Plaintiff has had an opportunity to lay the
necessary foundation for admission at trial.
16
17
Defendants also argue that the logbooks would still be inadmissible because the statements contained within
the logbook would be inadmissible “hearsay within hearsay.” As Defendants put it, the “statements contained
within those logs are repeated statements made by declarants outside of court and, therefore, hearsay.” (Defs.
Reply 7.) As will be explained, resolution of this issue at this time is premature because Plaintiff has yet to
have an opportunity to lay the requisite foundation for the logbooks.
Defendants’ reliance on United States v. Chen Kuo, No. 10-cr-671, 2011 WL 145471, at *12 (E.D.N.Y. Jan.
18, 2011) does not alter this conclusion. The records at issue in Chen Kuo were a “sprint report” containing
information recorded by 911 operators and broadcast to police over radio, and the corresponding 911
recordings. Id. at *1. The court opined that the recordings and the report could constitute business records,
but that the information within them were hearsay within hearsay. Id. at *11-12. Because the 911 callers
were under no duty to report that information, their statements were not automatically covered by the business
record exception, as was the case in Reyes. Id. at *12. There was no indication in the opinion, however, that
the 911 operators had a way to verify the information supplied by those 911 callers.
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D. Defendants’ Motion to Preclude Exhibits 4 and 5 as Cumulative
Defendants seek to preclude Plaintiff from introducing evidence related to C.O. Brothers
and Sergeant Gunsett’s injury reports because neither disputes that he was injured during the
February 1st Incident. (Defs. Mot. 11.) Defendants maintain that the reports would simply
confirm Defendants Brothers and Gunsett’s testimony, rendering them needlessly cumulative
under Rule 403. (Id.) Plaintiff, for his part, explains that he “does not seek to . . . demonstrat[e]
that Defendants Brothers and Gunsett were not injured,” but asks to reserve his right to introduce
the reports for other purposes that he does not specify. (Pl. Opp. 9.) As these reports’ admissibility
(or lack thereof) will become evident at trial, the Court will reserve a decision until that time.
E. Defendants’ Motion to Preclude Exhibit 31 as Improper Character Evidence
As previously explained, both parties have agreed to preclude the introduction of Plaintiff’s
disciplinary history, and the Court has GRANTED both parties’ motions.
F. Defendants’ Motion to Preclude Speculative Testimony About an Unidentified Inmate’s
Alleged Death
Defendants argue that Plaintiff should be precluded from offering into evidence any
information related to C.O. Bresett allegedly killing an inmate in the past. (Def. Mot. 13.) Plaintiff
appears to agree to this preclusion. (Pl. Opp. 10.) Defendants’ motion is GRANTED.
G. Defendants’ Motion to Preclude Exhibits 18, 19, 22, and 23 or Any Evidence Related to
Matters That Have Been Dismissed
Defendants seek to preclude Plaintiff from offering any evidence related to claims that this
Court has already dismissed because “several of the exhibits on Plaintiff’s proposed pretrial order
exhibit list reference these events.” (Defs. Mot. 14.) Specifically, Defendants reference Plaintiff’s
Exhibits 18, 19, 22, and 23 of the JPTO. (ECF No. 208 at 9-10.)
Plaintiff maintains that he should be permitted to use the referenced exhibits as prior
consistent statements in conformance with Second Circuit law. (Pl. Opp. 10-11.) Plaintiff has
31
nevertheless represented that he would be "more than willing to redact references to causes of
action already dismissed" but does not otherwise address the issue. (Id. at 11.) Given Plaintiffs
representation, the Court GRANTS Defendants' motion to preclude information related to
previously dismissed claims. However, the Court will reserve its decision related to whether the
remaining information (if any) in Exhibits 18, 19, 22, and 23 would be admissible at trial.
H. Defendants' Motion to Require Plaintiff to Introduce Entirety of Use of Force and
Unusual Incident Reports
Defendants request that Plaintiff be "required to issue the entirety of' any documents he
seeks to introduce as exhibits. (Defs. Mot. 17.) Namely, Defendants are concerned that Plaintiff
will only introduce portions of the Unusual Incident and Use of Force Reports, which are listed as
three separate exhibits in the JPTO. (See ECF No. 208 at 9.) Plaintiff, in his opposition, notes
that he has moved to preclude Exhibits 20 and 21 (the Unusual Incident Report and Use of Force
Report) and that he "withdraws his request to admit portions of the Use of Force Report at Exhibit
12."
(PL Opp. 12; see also PI. Mot. 16 (citing Agnew Deel. Exs. 8 & 9).)
Accordingly,
Defendants' motion is GRANTED.
CONCLUSION
For the foregoing reasons, Plaintiffs motion is GRANTED in part, DENIED in part, and
RESERVED in part. Defendants' motion is likewise GRANTED in part, DENIED in part, and
RESERVED in part.
The Clerk of the Court is directed to terminate the motions at ECF Nos. 185 & 187.
Dated:
October 31, 2019
White Plains, New York
SO ORDERED:
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NELSON S. ROMAN
United States District Judge
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