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Melino v. Miller

August 5, 2010

JOSEPH MELINO, PLAINTIFF,
v.
PAULETTE MILLER; PAUL CUSHMAN; FRANCIS CARUSO; LOYCE DUKE; WILLIAM TOTTEN; DEBRA JOY; AND PHILIP ABITABLE, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Joseph Melino ("Plaintiff") has filed the current prisoner civil rights action against seven (7) employees of the New York State Department of Correctional Services at Hudson Correctional Facility: Paulette Miller, Paul Cushman, Francis Caruso, Loyce Duke, William Totten, Debra Joy, and Phillip Abitable ("Defendants"). (Dkt. No. 1.) Currently pending before the Court are two of Plaintiff's pretrial motions in limine. (Dkt. Nos. 73, 78.) For the reasons set forth below, Plaintiff's motions are denied.

I. RELEVANT BACKGROUND

Familiarity with the relevant factual allegations giving rise to Plaintiff's claims, and the procedural history of this action, is assumed in this Decision and Order, which is intended primarily for the review of the parties. As a result, the Court will refer to this action's factual allegations and/or procedural history in the Court's analysis of the current motion only when necessary.

II. PLAINTIFF'S MOTIONS IN LIMINE

Plaintiff has filed the following two motions in limine: (1) a motion to permit Plaintiff's psychotherapist, Dr. Thomas A. Qualtere, to testify as an expert witness on the issue of Plaintiff's Post-Traumatic Stress Disorder; and (2) a motion to preclude the introduction of evidence related to all of his prior criminal convictions pursuant to Fed. R. Evid. 609 and 403. (Dkt. Nos. 73, 78.)

A. Motion to Permit Testimony of Expert Witness

Generally, in support of his motion to permit his psychotherapist to testify as an expert witness, Plaintiff argues as follows: (1) the "testimony is essential to prove the depth of emotional damage suffered by [him] as a result of Defendants' actions"; (2) as his treating physician for roughly two months, his expert is "highly qualified... to testify about the proposed issue of [his post traumatic stress disorder]"; (3) "Dr. Qualtere has regularly been found to be an expert in all of the courts of the State of New York and elsewhere and regularly testifies for the New York State Attorney General's office as an expert in Prison Rights and other cases"; and (4) "[t]he introduction of Dr. Qualtere's testimony will not be prejudicial to Defendants because in his testimony Dr. Qualtere will not address any legal conclusions." (Dkt. No. 73.)

In response, Defendants argue as follows: (1) because Plaintiff has failed to show good cause for his failure to comply with Fed. R. Civ. P. 26 and the Court's Scheduling Order of May 8, 2007 (Dkt. No. 20), the testimony in question is inadmissible; (2) even if the Court were to excuse Plaintiff's failure to timely identify this witness, the testimony is irrelevant, and therefore inadmissible, because "the Court has already ruled th[at] [D]efendants' are not liable for [P]laintiff's alleged suffering in SHU and at Hudson Correctional Facility"; and (3) if the Court is inclined to grant the motion, Defendants' trial should be adjourned and discovery reopened. (Dkt. No. 86.)

B. Motion to Preclude Introduction of Prior Criminal Convictions

Generally, in support of his motion to preclude Defendants from introducing evidence of his prior criminal convictions, Plaintiff argues that evidence of his prior criminal convictions should be excluded, for the purpose of attacking his character for truthfulness, for the following reasons: (1) certain of those convictions do not involve "an act of dishonesty or false statement" pursuant to Fed. R. Evid. 609(a)(2); (2) the convictions that involve "an act of dishonesty or false statement" are more than 10 years old, and are therefore inadmissible pursuant to Fed. R. Evid. 609(b); and (3) the probative value of admitting any of his criminal convictions does not substantially outweigh its prejudicial effect pursuant to Fed. R. Evid. 403, 609(a)(1), and 609(b). (Dkt. No. 78.)

Generally, in opposition to Plaintiff's motion, Defendants argue as follows: (1) Plaintiff's 2003 convictions for grand larceny and petit larceny are admissible because these crimes "by [their] nature, [are] probative of a lack of veracity"; and (2) because Plaintiff's 1991 and 1992 convictions involved "an act of dishonesty or false statement" pursuant to Fed. R. Evid. 609(a)(2), "exceptional circumstances" allow for the admission of these convictions.*fn1

III. ANALYSIS

A. Whether Plaintiff's Psychotherapist Should be Permitted to Testify ...


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