Opinion
03 Civ. 6307 (RWS).
May 24, 2007
Attorney for Plaintiff: GINSBERG BROOME, P.C., New York, New York, By: ROBERT M. GINSBERG, ESQ.
Attorneys for Defendants: MICHAEL A. CARDOZO, Corporation Counsel for the City of New York, New York City Law Department, New York, New York, By: ELIZABETH M. DAITZ, ESQ., ELIZABETH W. DOLLIN, ESQ., SUSAN M. HALATYN, ESQ.
MEMORANDUM OPINION ORDER
The City of New York (the "City"), New York City Police Officer Neil H. Spadaro ("Spadaro"), and Police Officer John Doe #1 (collectively the "Defendants") have filed a motion in limine in advance of the set trial date of May 29, 2007. Plaintiff Connor McEnery ("Plaintiff" or "McEnery") has opposed the motion.
In addition to any rulings made on the record at the May 23, 2007 hearing on the motion, the trial date is adjourned at the discretion of the Court for the reasons set forth below.
Prior Proceedings
This action was commenced by the filing of McEnery's complaint on August 21, 2003. The complaint asserted claims of false arrest and excessive force under federal law and New York state law. The action, which was originally assigned to the Honorable Harold Baer, was reassigned to this Court on April 26, 2004.
The Defendants moved for summary judgment, and the motion was heard and marked fully submitted on September 14, 2005. On October 4, 2005, the summary judgment motion was referred to Magistrate Judge Dolinger. On December 7, 2005, Magistrate Judge Dolinger filed his Report, which recommended that Defendants' motion for summary judgment be denied in its entirety. On December 28, 2005, Defendants filed objections to the Report in accordance with Fed.R.Civ.P. 72(b). The objections were marked fully submitted on February 9, 2006. Judge Dolinger's Report was adopted and the Defendants' objections were overruled in an opinion dated August 3, 2006. McEnery v. City of New York, No. 03 Civ. 6307, 2006 WL 2224566 (S.D.N.Y. Aug. 3, 2006). Defendants filed a motion for reconsideration on September 25, 2006, which was denied on December 19, 2006.
Defendants filed the instant motion on May 16, 2007. Plaintiff filed a letter in response on May 21, 2007. A hearing on the Defendants' motion was held on May 23, 2007. At the hearing, all of the issues were disposed of with the exceptions of: (1) precluding McEnery from proffering any medical evidence; and (2) precluding the testimony of those witnesses noticed by the Defendants in the May 16 letter.
Discussion
Discovery in this matter has presented many challenges which have continued up until the eve of trial.
The Defendants have indicated that McEnery's subpoenaed medical records were only received by the Defendants within the last several weeks. These records reportedly cite to the medical records of two additional doctors which the Defendants claim were never disclosed to them: (1) Dr. Lord; and (2) Dr. Art Kelly.
In a subsequent letter to the Court dated May 23, 2007, the Defendants clarified that the subpoenaed medical records indicate that Plaintiff was treated by Dr. Kelly and Dr. Lord, as well as two additional and different therapists prior to October 26, 2001. Defendants assert further in the May 23 letter that "absent preclusion of any and all evidence regarding plaintiff's claims for emotional damages, this trial must be adjourned until September to allow defendants to obtain these records and have them reviewed by defendants' expert and incorporated into a supplemental expert report, as necessary."
In a letter to the Court dated May 24, 2007, including certain attachments, the Plaintiff has asserted that: (1) the Defendants have received the records of certain of Plaintiff's treating physicians, including Doctors Cottle and Elliot, and, indirectly, Doctors Kelly and Mitchum; (2) Doctors Lugo, March, Milan, and Goli essentially provided only minimal treatment to the Plaintiff, and some of their records may have been contained in the records of Doctor Cottle; (3) information regarding the Plaintiff's prior treatment is not relevant because it pertains only to the Plaintiff's treatment for ADD and OCD, and Plaintiff is not asserting any aggravation of his OCD; and (4) subsequent to the Plaintiff's deposition in 2004, Defendants failed to make any requests for medical records or names of treating physicians until the last few weeks.
Contrary to the Defendants' claim and as pointed out by the Plaintiff, Dr. Lord was referenced in the report of Dr. Rubinstein, which Plaintiff's counsel has asserted was served on the Defendants on January 22, 2007. However, there is no mention of a Dr. Art Kelly in that report, nor was Dr. Kelly identified during McEnery's 2004 deposition. The identity of the other two therapists to which the Defendants made reference in the May 23, 2007 letter remains unclear at this time. Defendants have also asserted in a letter dated May 24, 2007, that until receiving Plaintiff's letter of that same date, Defendants were unaware that Plaintiff had treated with Doctors Lugo, March, Mitchum, Goli, and Milan.
In addition, Plaintiff has objected to the testimony of those witnesses noticed by the Defendants in a May 16, 2007 letter (the "May 16 letter"). Although this objection has been continued in the Plaintiff's May 24 letter to the Court, Plaintiff also objects in that letter to the trial being adjourned. While the Plaintiff has not cited to the Federal Rules of Civil Procedure, he is presumably arguing for sanctions pursuant to Rule 37(c)(1), Fed.R.Civ.P., for failure to comply with the thirty day disclosure requirement of Rule 26(a)(3), Fed.R.Civ.P.
Two of the witnesses noticed by the Defendants in the May 16 letter were identified from video footage of McEnery's arrest. This video footage was allegedly discovered by the Defendants within the last several weeks, at which time it was also disclosed to the Plaintiff. The effort to identify officers depicted in the video was recently discussed at a pretrial conference held on May 10, 2007. In Defendants' subsequent letter to the Plaintiff dated May 16, 2007, the Defendants indicated that they had succeeded in identifying several of the officers that appear on the video, and that they intended to call two of those officers as witnesses at trial: Police Officer Addeo and Detective Darryl Haynes.
In view of the pertinent issues in this case, the parties' ability to obtain discovery adequate to permit a fully informed resolution of those issues, and any undue prejudice created by the parties' respective motions to preclude certain evidence at trial, the trial will be adjourned until the remaining discovery issues can be fully addressed.
First, while it would be clearly prejudicial to preclude the Plaintiff from asserting a claim for emotional or psychological injuries, it would also be prejudicial to allow such a claim to go forward without affording Defendants the discovery of potentially relevant evidence pertaining to any treating psychiatrists and psychologists that the Plaintiff has failed to identify. Although Defendants may now be in receipt of all the relevant discovery on this point, this remains uncertain. Overall, this discovery issue and the reasons for any associated complications has become particularly murky.
Second, the testimony of those officers present at the scene of McEnery's arrest may be relevant, and therefore their identification at this late date in the litigation should not necessarily prevent the Defendants from offering their testimony at trial. Plaintiff should, however, be given adequate opportunity to depose these witnesses.
In the May 16 letter, Defendants also reserved the right to call Deputy Inspector O'Connell at trial to testify as to certain matters pertaining to the processing of arrestees on February 15, 2003. Unlike the officers that were recently identified from the newly discovered video footage of McEnery's arrest, there is no apparent reason why the Defendants failed to identify Deputy Inspector O'Connell as a witness in compliance with Rule 26(a)(3), Fed.R.Civ.P. Accordingly, Deputy Inspector O'Connell will be precluded from appearing as a witness at trial unless the Defendants can provide sufficient justification for this lack of compliance.
Conclusion
Accordingly, the trial will be adjourned until October 8, 2007, so that the remaining discovery issues can be fully addressed.
No later than seven days from the date of this opinion, the parties shall submit a proposed discovery and scheduling order addressing only those issues raised in this opinion. All other rulings on the Defendants' in limine motion rendered at the May 23, 2007 hearing remain in effect.
It is so ordered.