The opinion of the court was delivered by: Tucker L. Melan§on United States District Judge
Before the Court are defendant's motion in limine [Rec. Doc. 77], defendant's memorandum in support [Rec. Doc. 79] and plaintiff's opposition thereto [Rec. Doc. 85], and defendant's motion to strike [Rec. Doc. 81], reiterating the request made in defendant's motion in limine to preclude plaintiff from introducing evidence from defendant's disciplinary history and personnel files. Also before the Court are plaintiff's motion in limine [Rec. Doc. 78] and defendant's opposition thereto [Rec. Doc. 84]. Also before the Court is defendant's motion to Amend/Correct/Supplement his Will Call Witness list [Rec. Doc. 87].
Plaintiff brings this action under 42 U.S.C. § 1983, alleging an unlawful Terry stop, false arrest, malicious prosecution and excessive force stemming from an incident on January 22, 2006. Plaintiff withdrew his Monell claims against the City of New York, as well as his claims under New York State law [Rec. Doc. 52]. Because defendant's and plaintiff's motions [Rec. Docs. 77 and 78] cover much of the same ground, the Court will address them together.
Defendant asserts that he should be allowed to introduce evidence of plaintiff's frequent marijuana use for the purpose of showing plaintiff's ability to perceive and recall the events of January 22, 2006. Defendant asserts that plaintiff has conceded that the officers found marijuana as a result of the pat down they performed and that plaintiff admitted in his deposition that he is a habitual user of marijuana and uses it as a substitute for his diabetes medication. [Rec. Doc. 79, at 5].
The Court will defer ruling on the issue of the admissibility of plaintiff's drug use, and will hold a hearing on Monday, July 18, 2011 at 2:30 p.m. after jury selection that morning to determine whether, based on United States v. Basciano, 141 F. 3d 1152, 1998 WL 88098 (2d. Cir. 1998), the evidence will be admitted.
However, defendant will not be permitted to introduce evidence of drug use on the issue of damages, because they have not listed any medical experts on their Will Call Witness list [Rec. Doc. 70], who would be able to testify to the effect of marijuana use as an alternative cause of plaintiff's emotional distress and plaintiff has testified that at the time of his deposition he was still using marijuana, thus the situation is not analogous to Lewis v. District of Columbia, 793 F.2d 361, 363 (D.C. Cir. 1986), a case cited by defendant, where the plaintiff was suffering nightmares that could have been attributable to drug withdrawal, not emotional distress.
III. The Classon Avenue Incident
Defendant asserts that plaintiff should be precluded from introducing evidence of his theory that, six months following the January 22, 2006 incident, he was mistreated by the police, in the form of an illegal eviction that led him to lose income from the car repair and sale business he ran from his home, as part of a conspiracy to retaliate against him for refusing to take an adjournment in contemplation of dismissal to resolve the criminal charges stemming from the January 22, 2006 incident.
Plaintiff will not be allowed to testify to the Classon Avenue incident that occurred six months after the January 22, 2006 incident because the Classon Avenue incident has no bearing on his claims of an unlawful Terry stop, false arrest, malicious prosecution and excessive force against Police Officer Mikal Wright. The evidence is irrelevant under Federal Rule of Evidence 401 and plaintiff did not address this element of defendant's motion in his opposition.
Defendant seeks to introduce evidence that at plaintiff's deposition he was unable to remember the name of one of his eleven children, how to spell the first names of three of his children, how to spell the last names of five of the children and failed to remember the last name of one of his children. [Rec. Doc. 79, at 6-7]. Plaintiff's motion in limine asserts that plaintiff only has eight children and that the number of children and his relationship to them may be prejudicial. Defendant seeks to admit the testimony at plaintiff's deposition because it "raises questions as to the reliability of plaintiff's memory." [Rec. Doc. 84, at 8]. However, plaintiff asserts that plaintiff's distant relationship, not memory loss, explain his inability to remember his children's names. [Rec. Doc. 85, at 4].
The Court finds that plaintiff's memory of his children's names is not relevant under Federal Rule of Evidence 401 and if it were relevant it would be excludable under Federal Rule of Evidence 403 because the probative value, if any, is substantially outweighed by the prejudicial effect. Defendant will be precluded from making any reference to plaintiff's children and his memory, or lack thereof, of their names.
V. Plaintiff's suggestion of a specific dollar amount
Defendant asserts that plaintiff should be precluded from suggesting a specific dollar amount of damages to the jury. Although the Second Circuit has stated in the context of monetary awards for pain and suffering that "specifying target amounts for the jury to award is disfavored," Consorti v. Armstrong World Industries, Inc., 72 F.3d 1003, 1016 (2d Cir. 1995), the Second Circuit has also stated that "it is best left to the discretion of the trial judge, who may either prohibit counsel from mentioning specific figures or impose reasonable limitations, including cautionary jury instructions." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997). Plaintiff's counsel will be permitted to suggest a specific dollar amount in his closing statement, but must do so in the first argument in order for defense counsel to respond if he chooses to do so, ...