UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
November 9, 2009
DOMINICK I. GOLIO, PLAINTIFF
CITY OF WHITE PLAINS, CITY OF WHITE PLAINS POLICE DEPARTMENT, CITY OF WHITE PLAINS POLICE OFFICERS, BADGE 151 JENNIFER SUGGS, BADGE UNKNOWN F/N/U LOPEZ, AND DOE ONE THROUGH FIVE DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
OPINION AND ORDER
On October 2, 2009, Plaintiff's counsel requested a brief reopening of discovery because they had very recently been informed that in the White Plains police station holding area, pre-fastened handcuffs were utilized to replace the arresting officer's handcuffs. Plaintiff requested leave to notice a police procedures expert, able to testify on the subject, whom they had located. The Court approved the application and ordered the expert report to be filed by October 9, 2009. The Court also granted Plaintiff's request for any surveillance tapes of the holding area. A copy of Plaintiff's counsel's letter of October 2, 2009 with the Court's endorsement is attached. On October 9, 2009, Plaintiff served an affidavit of Joseph Pollini, a retired New York City police officer who rose to the rank of Lieutenant Commander of Detectives.
On October 23, 2009, Defendant moved for an order precluding the testimony of Plaintiff's expert witness Joseph Pollini as its designated "police procedures" expert. Mr. Pollini's affidavit of October 9, 2009 is attached as Exhibit A to Defendant's motion.
Mr. Pollini's affidavit is not limited to procedures in the holding area of the White Plains police station, the subject matter on which the Court authorized discovery reopened. Paragraph 5 deals with the arrest procedures followed by the police in arresting the Plaintiff and placing him in handcuffs. Paragraph 6 relates to Plaintiff having a similar name to that of his father, the owner of the car Plaintiff was driving. Paragraph 7 relates to the Plaintiff driving a car whose plates were expired and without the required insurance, and the stop of the vehicle. Paragraph 8 deals with the stop of the vehicle and Plaintiff's complaints during a search of the vehicle to Police Officer Lopez that his handcuffs were too tight and a complaint to Police Officer Suggs during the trip to the police station that his handcuffs were too tight.
In paragraph 9, Mr. Pollini offers his opinion that a violation of proper and accepted police practices and procedures occurred because the officers did not thoroughly confirm Plaintiff's identity and Police Officer Suggs, when conducting her second inquiry with the police dispatcher, failed to give the dispatcher the date of birth of the Plaintiff, which was contained on Plaintiff's driver's license and in Police Officer Suggs' possession.
In paragraph 10, Mr. Pollini asserts it was a violation of proper and accepted police practice and procedures for the officers to fail to instruct Plaintiff to restrict his movements while in the police car because movements would cause restricted blood circulation in his hands and cause pain, and also a violation of police practices and procedures to fail to adjust the Plaintiff's handcuffs after he complained on three different occasions of pain because of tight handcuffs.
All these opinions are based on events alleged to have occurred prior to Plaintiff's entry into the holding area and discovery was not reopened by the Court to allow Plaintiff to bolster those aspects of his case. Rule 26(a)(2)(C) requires that ninety days prior to trial a party provide notice of expert testimony, absent a stipulation or court order. No such notice has been submitted to the court. It is also noted that Mr. Pollini attaches no documents to support the above opinions, cites no supporting legal authority to the same effect, and that the opinions make findings of fact about matters disputed by the parties. Accordingly the testimony by Mr. Pollini related to the subjects covered in paragraphs 5 through 10 of his affidavit is precluded. If timely notice was provided to Defendants, then this testimony should demonstrate his familiarity with accepted police practices outside of New York City and should be limited to acceptable police practices procedures and not the facts of the case.*fn1
Mr. Pollini, in paragraphs 11 and 12, recites his understanding of what Police Officer Suggs' testimony will be based on her deposition, and then offers the opinion that "there was a very strong likelihood that Police Officer Suggs secured the plaintiff to the various bars within the booking facility with her own handcuffs as the plaintiff was processed and searched" because it is "common practice for police officers... to use their own handcuff keys to lock and unlock one handcuff as arrestees are moved from place to place," and because the alternative is waiting "for detention personnel to use a different type of key to unlock handcuffs that are permanently secured to polls [sic] in the facility."
Mr. Pollini's affidavit was based on deposition testimony of Plaintiff Golio, witnesses Police Officer Suggs and Police Officer Lopez, a review of reports that were submitted by Lieutenant Schneider, Lieutenant Christopher, Sergeant Fuerst, Sgt. Fottrell, Sergeant Parlow, Police Officer Petrosino, Police Officer Petretti, Police Officer DaCosta, Police Officer Suggs, Police Officer Lopez, Police Officer Desiderio, and an interview of Plaintiff. Mr. Pollini does not state upon which of these documents he is relying or the content with the documents upon which he bases his conclusions.
In paragraph 13, Mr. Pollini concludes that "members of the White Plains Police Department violated proper, accepted and standard police practices when they detained and improperly maintained custody of the plaintiff, Mr. Golio." There is nothing to indicate that Mr. Pollini visited the holding facility in the White Plains Police Department or is familiar with the layout in relation to other facilities in which a detainee would be processed while there, so that the Court or jury can weigh whether there would be any need for the arresting officer to unfasten the handcuffs of the detainee once he or she has placed him there.
Under all these circumstances, unless Mr. Pollini was designated an expert witness in a timely fashion before October 2, 2009, his testimony must be limited to his experiences that holding cell handcuffs are generally not used by arresting officers because of the inconvenience of calling upon detention personnel to unlock the handcuffs for other officers. In all other respects, his testimony is excluded.
MEMO ENDORSEMENT READS:
1) Application granted. Report should be filed by October 9, 2009. So Ordered. Robert P. Patterson, Jr., U.S.D.J., 10/2/09
2) Application granted. So Ordered. Robert P. Patterson, Jr., U.S.D.J., 10/2/09