United States District Court, E.D. New York
Mary Jane GLOWCZENSKI and Jean Griffin, Individually and as the Co-Administrator of the Estate of David Glowczenski, Plaintiff(s),
TASER INTERNATIONAL, INC., Village of Southampton, Southampton Village Police Department, Police Officer Brian Platt in his individual and official capacity, Police Officer Marla Donovan, in her individual and official capacity, Police Officer Chris Wetter, in his individual and official capacity, Police Officer Arthur Schucht, in his individual and official capacity, County of Suffolk, Suffolk County Police Dept., Lieutenant Jack Fitzpatrick, in his individual and official capacity, Lieutenant Howard Lewis, in his individual and official capacity, John Doe 1-10, who are known by name to the Defendants but as of yet are not fully known to the Plaintiffs, Office of the Suffolk County Medical Examiner, James C. Wilson, M.D., Deputy Medical Examiner, in his individual and official capacity, Defendant(s).
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
John V. Tate, Esq., Renzulli Law Firm, White Plains, NY, for Defendant TASER International, Inc.
Devitt Spellman Barrett, LLP, Jeltje deJong, Esq., Joshua S. Shteierman, Esq., Smithtown, NY, for Village Defendants.
Lewis R. Silverman, Esq., Adam C. Guzik, Esq., Rutherford & Christie, LLP, New York, NY, for Defendant Brian Platt.
Law Offices of Frederick K. Brewington, Frederick K. Brewington, Esq., Hempstead, NY, for Plaintiffs Mary Jane Glowczenski and Jean Griffin.
MEMORANDUM & ORDER
WALL, United States Magistrate Judge.
Before the court are renewed motions for summary judgment or partial summary judgment by all defendants except the Suffolk County defendants,  and a motion by
TASER International to strike some of the plaintiffs' exhibits . The plaintiffs oppose all motions. The parties have consented to my jurisdiction for all purposes. The motions are decided as follows:
1.) TASER's motion to strike exhibits, [DE]252, is GRANTED IN PART AND DENIED IN PART;
2.) TASER's motion for summary judgment on all claims, DE, is GRANTED;
3.) Village defendants' motion for partial summary judgment, DE, is GRANTED
4.) Brian Platt's motion for summary judgment DE, is GRANTED.
The factual events underlying the plaintiffs' claims and the lengthy procedural history of this eight year old case have been set forth in numerous orders and are well known to the court and the parties. References to those facts and that history will be made where necessary but those facts will not be summarized here. I turn first to TASER's motion to strike those exhibits submitted by the plaintiffs in opposition to the motions for summary judgment, on the ground that they are hearsay or otherwise inadmissible.
I. Motion to Strike Exhibits
In opposition to the TASER summary judgment motion, the plaintiffs have submitted 82 exhibits, marked as A through DDDD, consisting of thousands of pages, along with several declarations or affidavits and a few additional exhibits in relation to the motion to preclude. TASER seeks to strike some of them as inadmissible. Specifically, TASER asks that the court not consider the following:
1.) Unsworn expert reports and declarations-Exhibits A, B, X, AA, DD, FF, XX, III, QQQ, RRR and YYY:
2.) Scientific and medical articles lacking Federal Rule of Evidence 803(18) foundation— Exhibits L, M, R, S, RR, and NNN;
3.) Hearsay book excerpts of isolated case reports— Exhibits K and CCCC;
4.) Hearsay PowerPoint presentation on metabolic acidosis— Exhibits I and BBBB;
5.) Hearsay media and public interest reports-Exhibits N, T, U, V, W, JJJ, KKK, LLL, and AAAA.
In considering motions for summary judgment, a court can consider only admissible evidence. See Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997) (" [O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." ); see also Rule 56(e)). The rules governing the admissibility of evidence on a summary judgment motion are the same as those governing admissibility at trial, and the district court has broad discretion in choosing whether to admit evidence. Raskin, 125 F.3d at 66. With these principles in mind, I turn to consideration of the various exhibits TASER seeks to bar.
1.) Unsworn Reports and Declarations and Reports from Other Litigations:
Morse, Leiken, Mamet and Rosenbaum Reports:
As TASER notes, I earlier ruled that unsworn expert reports are inadmissible and may not be considered on summary judgment. DE at 4-6. Nonetheless, in opposition to the renewed motions, the plaintiffs submitted two unsworn and unsigned expert reports (Exhs.
B (Morse Report), & X (Rosenbaum Report)), along with several signed but unsworn reports or declarations (AA (Morse Declaration), DD (Thanning Autopsy Report), FF (Meyers Report in separate litigation), XX (Mamet Report), III (Broich Affidavit) & QQQ (Broich memo), RRR (Leiken Report) and YYY (Wetli Report in separate litigation)). I declined to consider several exhibits submitted on the previous summary judgment motions because they were unsworn or otherwise unacceptable under 28 U.S.C. § 1746, noting that " Courts in this Circuit have uniformly held that unsworn expert reports do not satisfy the admissibility requirements of Fed.R.Civ.P. 56(e) and cannot be used [on] a summary judgment motion without additional affidavit support. DE  at 5. Those exhibits were the report and memo from plaintiffs' expert Michael Morse, and the reports of experts Dr. Leiken and Mr. Mamet. Incredibly, the plaintiffs submitted the same documents in the same form on these renewed motions as Exhibits B, X, AA, XX and RRR.
After being alerted to their error by TASER's moving papers, the plaintiffs have attempted to rectify it by submitting declarations from experts Morse, Leiken, and Mamet. The plaintiffs offer no explanation for their failure to follow the ruling on the earlier motions, but rely on caselaw that provides that an unsworn expert report can be " cured" by submitting an affidavit or declaration verifying the report's contents. DE at 7 (citing cases). Although they have wasted the defendants' and the court's time by failing to adhere to my earlier rulings, I will accept the declarations from Morse, Leiken and Mamet and will consider their reports if and when they are relevant to issues raised on the renewed motions for summary judgment.
The expert report of David S. Rosenbaum (Ex. X) is signed but unsworn, and the plaintiffs have not submitted a curative affidavit, because Dr. Rosenbaum has died. I did consider Dr. Rosenbaum's unsigned report on the earlier summary judgment motions, because TASER relied on it in its arguments. DE at 6. Here, TASER has not relied on the report, relying only on Rosenbaum's expert deposition testimony, and seeks to strike the Rosenbaum report as unsworn. The plaintiffs appear to argue that the unsworn report is admissible because (1) TASER relied on it in conducting Rosenbaum's deposition and (2) because the report " survived the scrutiny of Daubert motions." The plaintiffs do not cite to any caselaw supporting those propositions. In light of the very unusual history regarding the Rosenbaum report, I decline to strike it, but I do not intend that ruling to suggest that the arguments advanced by the plaintiffs regarding the Rosenbaum report are good law that can be applied in other cases.
For these reasons, the expert reports of Morse, Leiken, Mamet and Rosenbaum will not be excluded.
Christopher Broich was a Sergeant with the Southampton Police Department at the time of Mr. Glowczenski's death. The plaintiffs have submitted an affidavit from him (Ex. III) which is signed and notarized, but, according to TASER, unsworn in compliance with 28 U.S.C. § 1746, and a memo from Broich to Ira Cure (Ex. QQQ), which TASER says is unsworn and " apparently in connection with unrelated litigation" concerning the termination of Broich's employment with the defendant Police Department. DE  at 3. The plaintiffs say that he is not an expert but a fact witness.
DE at 10. TASER argues that his fact evidence is inadmissible because he was not disclosed as a fact witness in Rule 26 Reports. The plaintiffs say he was disclosed because they included a memo from Broich as an exhibit in their opposition to the summary judgment motions in 2009. See DE  at 10, referencing DE, ¶ 33, Ex. FF). TASER responds that the plaintiffs' " suggestion that TASER was aware of Broich generally because they included a memo from him (also inadmissible hearsay) in the mountain of exhibits filed in connection with a 2009 motion ... is absurd." I agree that such inclusion was not sufficient. Broich's status as a potential fact witness should have been noticed pursuant to the requirements of Rule 26(a)(i) and was not. See, e.g., Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 72 (E.D.N.Y.2012) (citing cases finding that incidental mentions of individuals do not satisfy requirements of Fed. R. 26(a)(1)(A)(i)). " [T]o satisfy Rule 26, parties must make an unequivocal statement that they may rely upon an individual on a motion or at trial." Id. (citations omitted). I find that inclusion of a memo from Broich as one exhibit in a voluminous set of exhibits does not satisfy Rule 26 and the Broich documents must be excluded on that ground.
Further, many of the statements in his affidavit are not mere recitations of fact, but his opinions about other people and what they allegedly knew and did. Mr. Broich cannot know what all Village of Southampton Police officers were " aware" of (¶ 1), what officers other than himself were taught (¶ 2), or what the Police Department was " aware" of because some officers were members of a certain organization (¶ 3). And, his statement about defendant Donovan is total opinion and is hearsay. Both the Broich Affidavit and memo, Exhibits III and QQQ, will be excluded.
The Remaining Unsworn Reports:
The plaintiffs have also submitted reports from the following individuals: Lone Thanning, a former expert in this litigation (Ex. DD) who is now an expert in another lawsuit pending in this court, Hollman v. TASER, CV 06-3588 (E.D.N.Y.); Mark R. Myers (Ex. FF); and Charles V. Wetli (Ex. YYY). Both the Myers and Wetli reports were submitted in a separate litigation, Heston v. City of Salinas, CV 05-3658 (N.D.Cal.) Wetli is an expert for the Village defendants in this litigation, but the report purportedly  submitted by the plaintiffs is from the Heston lawsuit. These reports are unsigned and/or unsworn. They will all be excluded. Not only are they unsigned and unsworn, but the authors are undisclosed witnesses and I will not accept reports from unrelated litigation. Although Thanning was formerly a plaintiffs' witness in this action, she withdrew under unexplained circumstances. And, although Wetli is a co-defendant's expert in this case, his opinions in the Heston lawsuit are not admissible here. See Hutchinson v. Groskin, 927 F.2d 722, 724 (2d Cir.1991) (district court erred in allowing party to present conclusions reached by other physicians not subject to cross examination by introducing letters, not reports ).
The plaintiffs argue that the three reports are admissible under
Fed.R.Evid. 804(b), which allows the introduction of testimony from another proceeding by a now unavailable witness, that, inter alia, is now offered " against a party who had— or, in a civil case, whose predecessor in interest had— an opportunity and similar motive to develop it by direct, cross or redirect examination." Thus, the plaintiffs argue, the three reports are admissible because TASER either deposed or had the opportunity to depose these experts in this or other litigation. Rule 804 does not, however, provide a basis of admissibility for the reports. First, each of the Rule's elements must be satisfied, and, here, the plaintiffs do not show how or why the experts are unavailable, nor do they attempt to qualify former testimony, but expert reports from other litigations. See United States v. Amato, 2006 WL 1788190, *1 (E.D.N.Y. June 26, 2006) (proponent of prior testimony under Rule 804(b)(1) has burden to show witness unavailability); United States v. Salerno, 505 U.S. 317, 321, 112 S.Ct. 2503, 120 L.Ed.2d 255 (1992) (" Nothing in the language of Rule 804(b)(1) suggests that a court may admit former testimony absent satisfaction of each of the Rule's elements." ) Further, the reports are, as noted, unsworn and no attempt has to made to rehabilitate them.  They will each be excluded.
The Waxman Affidavit:
The plaintiffs have submitted the affidavit of Dr. Menashe Waxman (Ex. A) from separate litigation, Bolander v. TASER, CV 07-80789 (S.D.Fla.). TASER argues that it should be excluded because Waxman is not an expert in this case, and the plaintiffs " should not be allowed to ‘ borrow’ his opinions" for use in this case long after discovery has closed, when there was no disclosure and no relevance has been shown. DE at 4-5. Even accepting his affidavit as testimony, there is no showing that he is unavailable so as to invoke Rule 804, and he has never been disclosed pursuant to Rule 26. His affidavit will be excluded.
Medical and Scientific Articles:
TASER argues that " published medical and scientific articles must also be excluded on relevance and hearsay grounds if they (1) were not relied upon by an expert in forming his opinions who can establish the foundation required by Fed.R.Evid. 803(18), (2) do not involve ECD drive-stuns, and/or (3) post-date Glowczenski's death on February 4, 2004 ..." Those articles include Exhibits L, M, R, S, RR and NNN.
A published article is hearsay. The parties agree, as a threshold issue, that Rule of Evidence 803(18) is the hearsay exception that can admit such articles. That Rule permits the reading into evidence of statements in learned treatises, periodicals or pamphlets if " (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice." Both elements must be established.
Here, the plaintiffs have not met the requirement of section (B). As TASER notes, the potential establishment of the articles at trial as reliable authorities does not make them admissible as evidence on the current motion for summary judgment. The plaintiffs argue that the Second Circuit has found that " because the authoritativeness inquiry is governed by a ‘ liberal’ standard, good sense would seem to compel recognizing some periodicals— provided there is a basis for doing so— as sufficiently esteemed to justify a presumption in
favor of admitting the articles accepted for publication therein." DE  at 16 (quoting Costantino v. Herzog, 203 F.3d 164, 172 (2d Cir.2000)). Here, however, there is no basis provided for recognizing the periodicals— Forensic Science International, the Journal of Forensic and Legal Medicine, the American Heart Journal, the Canadian Medical Association Journal, and the journals of The American Heart Association and the American College of Emergency Physicians— other than plaintiffs' counsel's unsupported assertions. The plaintiffs have failed to meet that burden. No expert has laid a proper foundation for the admission of the articles now. And, in the absence of adequate indicia of the journals' reputations or the standards used by the journals for peer review and publication, there is no justification for my presuming in favor of admission. See Costantino, 203 F.3d at 172 (" We ... agree ... that the contents of a periodical cannot be automatically qualified ‘ wholesale’ under Rule 803(18) merely by showing that the periodical itself is highly regarded." )
Plaintiffs argue in the alternative that the articles are admissible under the residual hearsay exception rule, Fed.R.Evid. 807, which can be relied on when the evidence at issue is not specifically covered by other hearsay exceptions. Here, the evidence— the articles— is specifically covered by another hearsay exception, Rule 803(18), and Rule 807 is inapplicable.
The plaintiffs also argue that the Zipes article, Ex. RR , is admissible as a business record of the American Heart Association under Rule 803(6). I can only agree with TASER that such an argument is ridiculous. The article is Dr. Zipes's opinion, published as part of a litigation case notes series, not a business record.
For these reasons, Exhibits L, M, R, S, RR and NNN will be excluded.
Exhibit K, Book Excerpts:
Exhibit K consists of excerpts from a book by Howard E. Miller, TASER Electronic Service and Sudden In-custody Death, published in 2008. Exhibit CCCC is an attorney prepared summary of details from the excerpts. TASER argues that the excerpts must be excluded as inadmissible hearsay " where no expert has established reliance or reliability under Rule 803(18)." DE at 7. But the plaintiffs do not seek admission under that rule. They rely on the book as evidence that TASER knew, or should or could have known, from reports in the public domain prior to Glowczenski's death in 2004, that TASER weapons may cause death in drive-stun mode. Plaintiffs describe the book as one that " compiles case information from the public domain regarding individuals that have died in close proximity to the use of a TASER weapon and the mode in which the TASER device was used." DE at 13. They claim that the author is " neutral on the issue of the use of TASER weapons," and that the book is a survey in the public domain of cases of people who have died after exposure to a TASER weapon in stun-drive mode. Id.
Before applying Rule 807, we need to step back and apply the definition of hearsay to the excerpts. Rule 801 defines hearsay as a statement that: " (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." So, we must ask— what are the ...