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Pierce v. City of New York

United States District Court, E.D. New York

June 16, 2017

LERIN PIERCE, Plaintiff,


          BRIAN M. COGAN U.S.D.C.

         During trial on June 15, 2017, plaintiff attempted several times to elicit improper expert testimony from his treating chiropractor witness, in direct contravention of this Court's prior rulings on the impropriety of such a tactic. Plaintiff, time and again, attempted to circumvent the Court's rulings, continuing to assert his disagreement with them. Because the Court had resolved multiple motions in limine that raised over a dozen issues within a short five-day window of time before the start of trial and because the issue of the proper contours of medical testimony is an important one, the Court sets forth the basis for its ruling in this memorandum.


         Plaintiff filed this action on October 12, 2016, against the City of New York and certain individual police officers he alleges subjected him to excessive force while effecting his arrest on September 1, 2014. During the Initial Status Conference in this matter, the Court ordered that fact discovery be completed by January 31, 2017, and that expert discovery be completed by March 15, 2017.

         On January 30, 2017, one day before the close of fact discovery, the parties wrote to the Court, asking to extend discovery. Defendants advised the Court that there were problems with plaintiff's responses to interrogatories and demands to produce, which were due on January 12, 2017, but were only emailed to the defense on January 28, 2017. The Court held a discovery conference on February 3, 2017, and extended the deadlines so that fact discovery would be completed by March 6, 2017, plaintiff's expert reports would be due March 7, 2017, defendants' rebuttal reports would be due March 28, 2017, and expert depositions would be completed by April 15, 2017. Most importantly, during the conference, the Court ordered plaintiff to disclose the names of his treating physicians within ten days, something that he had failed to do previously. As the Court later learned, plaintiff identified three treating physicians, pursuant to Federal Rule of Civil Procedure 26(a)(2)(C), which is the subsection under which treating physicians are designated. The Court also later learned that plaintiff offered “reports” from all three physicians.

         On February 23, the parties again wrote to the Court regarding discovery, and again the Court extended discovery, resetting the end of fact discovery for March 20, 2017. The Court further ordered that plaintiff's expert reports would be due March 21, 2017, defendants' rebuttal reports would be due April 11, 2017, and expert depositions should be completed by April 28, 2017.

         Discovery closed, and on April 26, 2017, the Court set the deadlines by which the parties were to exchange witness and exhibit designations, in addition to setting the date of the final Pre-Trial Conference. Shortly after the parties filed their witness and exhibit lists on May 16, 2017, the Court received the first of what would end up being six motions in limine filed prior to start of trial on June 12, 2017. As relevant here, defendants' motion in limine asked the Court to limit the testimony of plaintiff's treating physicians to treatment alone because none had commenced treatment of plaintiff “within a reasonable amount of time following the incident to be able to draw conclusions regarding any alleged causation.” In particular, Sternberg did not commence treatment of plaintiff until November 5, 2015, over 13 months after the incident at issue in this trial.

         The Court's initial omnibus Order on the first tranche of motions in limine resolved over a dozen issues. As is frequently the case with an omnibus Order on motions in limine, the Order did not contain detailed discussion of legal authority. The Court ruled that

Plaintiff failed to designate any expert witnesses and instead seeks to rely on treating doctors to testify regarding plaintiff's injuries. However, [plaintiff's] treating physicians are not experts, and plaintiff must limit his inquiry of the treating doctors to their treatment and observations alone. They may not testify as post hoc experts given plaintiff's failures under Federal Rule of Civil Procedure 26.

         The issue continued to be raised throughout the weekend before the start of trial, and on the eve of trial, the Court issued a second written Order, offering a somewhat more detailed analysis as to why plaintiff's particular treating physicians could not testify as to general causation: “plaintiff has suffered several significant injuries unrelated to the events of September 1, 2014, and only an expert, employing analysis that would pass muster under Daubert, for example a differential diagnosis, would be qualified to offer an opinion as to causation and distinguish between the effects of those unrelated injuries versus the effects of the September 1, 2014 incident.”

         The Court further explained that “[i]f plaintiff had no history whatsoever of medical injuries, then certainly, the causation issue would be much simpler, an expert may not be necessary, and the treating physician may suffice, ” but that “[t]his is not one of those simple cases.” Indeed, “[p]laintiff had several injuries, one of which he sustained two days before September 1, 2014.” Although not stated explicitly, the Court also believed that permitting plaintiff's treating physicians to offer causation testimony, without the benefit of genuine expert witness discovery practice, risked misleading the jury and unfairly prejudicing defendants.


         The Federal Rules of Civil Procedure provide for two types of expert disclosure. Rule 26(a)(2)(B) provides that when a witness is “retained or specially employed to provide expert testimony, ” the disclosure must be accompanied by a written report containing

(i) a complete statement of all opinions that the witness will express and the basis and reason for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial ...

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