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Morris v. New York State Department of Correctional Services

March 23, 2010

KEITH S. MORRIS, PLAINTIFF,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Hugh B. Scott

Consent Order

This matter was scheduled to commence trial on March 23, 2010. There are several outstanding issues which must be resolved prior to the commence of this trial.

1. Plaintiff's Witnesses

The plaintiff appeared for trial in this matter on March 23, 2010 without any witnesses.

Notwithstanding, the defendants move to preclude the plaintiff from calling any witnesses, other than himself, on the grounds that the plaintiff failed to disclose the identity of any such witnesses during the discovery period and failed to make any expert disclosures in this case.

This date for trial was set during a pretrial conference last month after the plaintiff informed the Court that he would not be engaging an attorney to represent him in this matter and that he was prepared to proceed to trial pro se. The parties were directed to filed pretrial statements in this case. The plaintiff filed a document entitled "Bill of Particulars" which merely set forth his claim that he was assaulted by the defendants and listed, for the first time, five individuals -- all alleged medical professionals -- who he intended to call as witnesses in this case. The plaintiff initially appeared pro se in this case. In that capacity, the plaintiff engaged in extensive discovery proceedings over a three year period. The plaintiff subsequently engaged counsel, and the discovery period was extended on two occasions over an additional three year period providing the plaintiff with further opportunities to engage in discovery. After the plaintiff's counsel was suspended from the practice of law, the plaintiff was afforded an opportunity to obtain new counsel, but indicated to the Court that he would proceed pro se.

Notwithstanding the extended discovery period in this case, and the fact that this case is over 6 years old, it is undisputed that the plaintiff did not file or serve any expert disclosure or otherwise identify the individuals he now designates as witnesses in this case. The defendants have had no opportunity to depose or otherwise conduct discovery as to these individuals. The defendants would be prejudiced by the last minute identification of these individuals as witnesses in this case. Moreover, the plaintiff has not described, in any way, the nature and substance of their purported testimony. Finally, as noted above, the plaintiff appeared on the day of trial without any of these witnesses. None of these individuals have been subpoenaed. The plaintiff has not articulated that any of these individuals, who appear to reside in New York City, have agreed to appear for him voluntarily for this trial. Moreover, the plaintiff indicates to the Court that he does not know the location of many of these individuals and that they may no longer be working at the New York City hospitals at which the plaintiff claims he was treated several years ago. In any event, in light of the fact that no pretrial disclosure was made as to these individuals, that the plaintiff has not taken any actions to produce these individuals for trial, and that the defendants would be prejudiced by their being allowed to be called as witnesses at trial, the plaintiff is precluded from calling these individuals as witnesses in this case. See Mann v. Taser Intern., Inc., 588 F.3d 1291 (11th Cir. 2009)(Plaintiffs, who asserted federal and state law claims arising from death of arrestee following sheriff's deputy's use of stun gun on her, did not show the required justification for their failure to disclose, prior to deadline set forth in district court's scheduling order for the disclosure of expert witnesses and reports, medical expert's affidavit opining that,... arrestee died from electrocution and acidosis.)

2. The Plaintiff's Testimony

The plaintiff will be allowed to present his testimony to the jury. He may testify only as to the facts underlying the incident on January 3, 2001 in which he claims he was assaulted by the defendants. He cannot testify as to any diagnosis made by medical personnel relating to the injuries he alleges to have received as a result of the incident. He cannot testify as to the fact that any medical conditions he claims he now suffers were "caused" by the acts of the defendants on January 3, 2001. See Ventura v. Sullivan, Civ. No. 01CV434S (W.D.N.Y. 2009)(J. Skretny)(plaintiff precluded from introducing evidence of causation where he did not present any expert witnesses; plaintiff was not competent to offer causation testimony); United States v. Cravens, 275 F.3d 637, 641 (7th Cir.2001)("Although a lay person may readily observe a [health] problem, the causation of a mental disease or defect is a more technical medical determination such that a court would find expert testimony particularly useful to its ultimate decision."); Korte v. Exxonmobil Coal USA, Inc., 164 Fed. Appx. 553, 556 (7th Cir.2006) (holding that expert testimony is needed to establish causation when the medical effects are not within the understanding of the average person); Goffman v. Gross, 59 F.3d 668, 672 (7th Cir.1995) (holding that lay testimony is not sufficient to establish plaintiff's claim that secondhand smoke caused his symptoms); Starks-Harris v. Taylor, 2009 WL 2970382 (N.D.Ind. 2009)(plaintiff failed to disclose the identity of any witness who may present expert testimony; plaintiff will not be permitted to opine that her arrest was the proximate cause of her mental and physical health problems or to offer, in effect, a self-diagnosis; any testimony as to whether arrest was the proximate cause of her injuries can only be given by an expert).

3. The Plaintiff's Prior Convictions

The defendants indicate that they desire to introduce evidence of the plaintiff's prior convictions as impeachment evidence in this case. It appears that the plaintiff was convicted in 1987 for robbery; for which he received a sentence of 41/2 to 9 years. He was paroled in 1990; but returned to prison to finish that sentence in 1993 and to serve a new 41/2 to 9 year sentence for possession of controlled substance.

Rule 609 (a) provides:

For the purpose of attacking the character for truthfulness of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, ...


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