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Djangmah v. Falcione

United States District Court, Second Circuit

December 5, 2013

VICTOR DJANGMAH, Plaintiff,
v.
MICHAEL FALCIONE, Defendant.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge.

Pending before the Court are several motions in limine regarding the introduction of certain items of evidence at the upcoming trial in this matter, which trial is scheduled to begin on Tuesday, December 10, 2013. With one exception discussed at the end of this Opinion, those motions are resolved herein.

FACTUAL BACKGROUND

By way of background, this action under 42 U.S.C. ยง 1983 for excessive force arises from Plaintiff's traffic stop and subsequent arrest on December 12, 2007. Plaintiff's Complaint was filed on April 29, 2008. (Dkt. #2). Plaintiff filed a First Amended Complaint on April 22, 009 (Dkt. #18), and a Second Amended Complaint on July 24, 2012 (Dkt. #71, 83).

The initial pretrial conference in the matter took place on January 21, 2010. On June 11, 2010, the Honorable Frank Maas, United States Magistrate Judge, [1] held a conference with the parties at which he instructed Plaintiff, as memorialized in a written order, to accompany Defendant's counsel to her office and sign medical releases and authorizations so that discovery could proceed. (Dkt. #36). Plaintiff ultimately provided those releases, according to Defendant, on or about June 25, 2010. (Dkt. #37 at 1).

Discovery eventually closed on January 13, 2012, after Defendant deposed an eyewitness to the traffic stop and arrest. (Dkt. #63). Thereafter, in December 2012, Defendant filed a renewed motion for summary judgment. (Dkt. #77, 78, 81, 82). On January 18, 2013, Magistrate Judge Maas issued a Report and Recommendation regarding Defendant's motion for summary judgment, granting that motion with respect to all parties originally named except for the Defendant here, Michael Falcione, and with respect to all claims except Plaintiff's excessive force claim, the one remaining issue in this litigation. (Dkt. #84). The Court adopted that Report and Recommendation in its entirety by Order dated March 25, 2013. (Dkt. #89).

On April 16, 2013, Magistrate Judge Maas ordered the parties to submit a Joint Pretrial Order, proposed voir dire questions, and requests to charge to the Court by May 17, 2013. (Dkt. #90). Defendant timely filed his responsive documents, after seeking several extensions, on June 4, 2013. (Dkt. #97, 98, 99). Plaintiff did not collaborate on Defendant's pretrial order. The parties appeared for a conference on August 29, 2013, where the Court ordered Plaintiff to submit a pretrial order to the Court and to Defendant by October 4, 2013. (Dkt. #107). Plaintiff ultimately filed his pretrial order, accompanied by medical records from NewBridge Services, on October 23, 2013. (Dkt. #110).

The parties appeared before the Court for a pretrial conference on October 31, 2013. ( See Dkt. #112). At that time, both parties made a number of motions in limine with respect to introducing certain items of evidence. The Court resolved several of these motions by oral order and deferred judgment on the remainder in order to obtain clarification regarding the nature of the evidence at issue and the parties' conduct during discovery.

The parties returned for a final pretrial conference on December 3, 2013. ( See Dkt. #116). At this conference, the Court resolved several of the pending evidentiary motions and was confronted with several brand new applications by both parties.

DISCUSSION

It is unfortunate, after the remarkable length of time this litigation has taken to reach this point, that new evidence should appear and new objections to evidence should be made a week before trial commences. Nonetheless the Court now confronts the following remaining motions in limine:

1) Plaintiff's motion to introduce medical records regarding his treatment at NewBridge Services in New Jersey, and Defendant's cross-motion to exclude these records;
2) Plaintiff's motion to introduce medical records regarding his treatment at Harlingen Medical Center in Texas, and Defendant's cross-motion to exclude these records;
3) Defendant's motion to prohibit Plaintiff from cross-examining Defendant regarding a 2008 episode involving the use of force; and
4) Defendant's motion to cross-examine two of Plaintiff's witnesses regarding their past criminal convictions.

The Court is mindful of its obligation to accommodate Plaintiff's pro se status and throughout this Order - as throughout the last several months - has endeavored to make every allowance possible, including here considering arguments that someone trained in the law might make in support of Plaintiff's motions and in opposition to Defendant's motions. For the reasons set out in the remainder of this Opinion, Plaintiff's motion to introduce records from NewBridge Services is denied, and Defendant's cross-motion to exclude these records is granted; Plaintiff's motion to introduce medical records from Harlingen Medical Center is denied, and Defendant's cross-motion to exclude these records is granted; Defendant's motion to prohibit Plaintiff from cross-examining Defendant regarding a specific episode of use of force is granted; and Defendant's motion to cross-examine Ivan Eli regarding his past criminal convictions is granted in part and denied in part. The Court requires additional information before it can resolve Defendant's motion to cross-examine Davon Chambers.

A. The Newbridge Records Are Excluded

First Plaintiff seeks to introduce the records of his treatment at NewBridge Services, which treatment (according to the records) began on October 15, 2010, and lasted for at least six months thereafter. This motion is denied for two reasons: (1) these records were never produced during discovery; and (2) these records are hearsay and Plaintiff cannot satisfy any exception to the rule against hearsay.

1. The Newbridge Records Were Not Produced

Defendant argues that Plaintiff never provided a release for this medical facility; that these records were not produced during discovery; and that Defendant first saw these records when they were included with Plaintiff's pretrial order on October 23, 2013. In consequence, Defendant argues, Plaintiff should be barred from introducing the NewBridge medical records. (10/31/13 Tr. at 19:2-7).

Plaintiff has offered two different, and somewhat contradictory, responses. At the October 31, 2013 conference, Plaintiff contended that he had provided Defendant with a release for the NewBridge facility during discovery and that these records were included in the filings made in connection with the motion for summary judgment. ( Id. at 19:16-21; see also id. at 20:15-18 ("THE COURT: So are you saying, sir, that you produced records to them before 2011? MR. DJANGMAH: Yes, it was part of my release. My release, my medical release."); id. at 21:4-9 ("THE COURT: You signed a release for Newbridge Services? MR. DJANGMAH: Yes, I did, with the prior corporation counsel. I think at one point during some of the documents I was sending to Ms. Krasnow, I did send them in as I got them from the institution as well."); id. at 24:23-25 ("So they had me sign the release right over there that same day and then they faxed it to them behind me - Newbridge faxed it directly to the corporation counsel from there.")).

This account, however, is not borne out by the record in this case. The Court has reviewed the papers Plaintiff filed in opposition to Defendant's motion for summary judgment and the disputed NewBridge records are not among them. (Dkt. #72). In addition, though certainly not dispositive, Defendant's correspondence with Magistrate Judge Maas lists seven different medical facilities for which Plaintiff executed medical releases, none of which is NewBridge Services. ( See Dkt. #37 at 2, #39 at 2).

At the conference held on December 3, 2013, Plaintiff advanced a different position. He produced a physical copy of an executed authorization to NewBridge Services to release medical information and argued that this release proved Defendant had received Plaintiff's NewBridge records. The release in question is dated May 6, 2013. This argument is inconsistent with Plaintiff's position at the October 31, 2013 conference that Defendant had received the disputed records either at some time prior to 2011 or during the summary judgment stage (which concluded in March 2013). Perhaps more importantly, the release in question identifies Plaintiff himself, and not Defendant's counsel or any representative thereof, as the "[p]erson authorized to receive information" from the facility.[2]

To be sure, Plaintiff could have provided these documents to Defendant directly after obtaining them himself from the facility. Even then, however, Defendant received the records, at the earliest, in May of this year, 16 months after the close of discovery. The date of the release is also significant: Magistrate Judge Maas' original order of April 16, 2013, instructed the parties to file a joint pretrial order by May 17, 2013, less than two weeks after Plaintiff authorized NewBridge to release medical records into his own custody. The records in question then emerged in this litigation as an attachment to Plaintiff's pretrial order submission. Given these facts, it seems much likelier that Plaintiff obtained these records to submit with his pretrial order and never produced them to Defendant, ultimately filing them with his pretrial submission on October 23, 2013.

On June 11, 2010, Magistrate Judge Maas ordered Plaintiff to provide medical releases to Defendant. (Dkt. #36). According to Defendant, Plaintiff provided the last such release on October 1, 2010. (Dkt. #39 at 2). Two weeks after providing the last release, according to the disputed records themselves, Plaintiff began receiving treatment from NewBridge Services. Yet, by Plaintiff's own account, he only obtained a release from that facility on May 13, 2013, more than 31 months later.

In Ginns v. Towle, the Second Circuit confronted a medical expert who was permitted to testify at trial in support of a plaintiff in a personal injury case though the defendant objected that he had never received a copy of that expert's medical report. 361 F.2d 798, 800 (2d Cir. 1966). The plaintiff's counsel responded that a copy had been mailed to the defense counsel. Id. The trial judge "accepted both statements and concluded that the report went astray, for some unknown reason." Id. The Second Circuit, rejecting this conclusion of the trial court, observed that "the basic purpose of the federal rules, particularly those concerning discovery and disclosure, is to eliminate trial by ambush, sometimes called the sporting theory of justice, and avoid the very kind of surprise practiced upon the defense in this case." Id. at 801.

Permitting the introduction of these medical records would result in equally unacceptable surprise to Defendant here. For this reason alone, the records would be excluded. However, an equally persuasive additional justification exists. Even had the records been produced as they should have been, the records are plainly hearsay, and ...


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