Scoma v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOHN SCOMA

Plaintiff,

-against- M 1E 6M -O CR VA -N 6D 6U 9M 3 A (N KD A MO )R (D SE JR B)

CITY OF NEW YORK, et al,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff John Scoma brought this action under 42

U.S.C. § 1983. In his second amended complaint, plaintiff

alleged eighteen claims, alleging that defendant police officers

(together with defendant the City of New York, “defendants”)

violated his constitutional rights, through the use of excessive

force to arrest him on September 19, 2015. (See ECF No. 44,

Second Amended Complaint.) Trial is scheduled to begin on May

10, 2021. (See ECF No. 95, Amended Pretrial Scheduling Order.)

By memorandum and order dated January 22, 2021, the court

granted partial summary judgment to defendants regarding the use

of excessive force as to Officer Francisco Allende’s use of a

taser, the municipal liability claim, state assault and battery

claims regarding Officer Allende’s use of a taser, and

plaintiff’s state constitutional claims. See Scoma v. City of

New York, No. 16-cv-6693 (KAM) (SJB), 2021 WL 230295 (E.D.N.Y.

Jan. 22, 2021). The remaining claims for excessive force under

§ 1983 and state assault and battery relate to the officers’

application of handcuffs and their conduct immediately after the

handcuffs were applied. Plaintiff has not identified the

officers involved in his remaining excessive force claims, other

than Officer Matthew Brander. The court assumes the parties’

familiarity with the underlying facts of the instant case.

Pending before the court are the parties’ respective

motions in limine to preclude certain evidence from being

admitted at trial. (See ECF No. 96, Defendants’ Memorandum in

Support of Motion in Limine (“Def. Mem.”); ECF No. 100,

Plaintiff’s Opposition (“Pl. Opp.”); ECF No. 98, Plaintiff’s

Memorandum in Support of Motion in Limine (“Pl. Mem.”); ECF No.

101, Defendants’ Opposition (“Def. Opp.”); ECF No. 119,

Defendants’ Notice of Objections (“Def. Obj.”).) For the

reasons set forth below, the motions are granted in part and

denied part. The court also rules on the parties’ respective

objections to the trial exhibits below, but reserves decision

for the Final Pretrial Conference and trial as to some of the

objections.

LEGAL STANDARD

“The purpose of an in limine motion is ‘to aid the

trial process by enabling the Court to rule in advance of trial

on the relevance of certain forecasted evidence, as to issues

that are definitely set for trial, without lengthy argument at,

or interruption of, the trial.’” Palmieri v. Defaria, 88 F.3d

136, 141 (2d Cir. 1996). “Evidence should be excluded on a

motion in limine only when the evidence is clearly inadmissible

on all potential grounds.” United States v. Paredes, 176 F.

Supp. 2d 179, 181 (S.D.N.Y. 2001). Further, a district court’s

ruling on a motion in limine is preliminary and “subject to

change when the case unfolds.” Luce v. United States, 469 U.S.

38, 41 (1984).

The admissibility of evidence at trial is governed by

the Federal Rules of Evidence (the “Rules”). Federal Rule of

Evidence 402 (“Rule 402”) provides that all relevant evidence is

admissible except as otherwise provided by the Constitution, Act

of Congress, or applicable rule. Fed. R. Evid. 402. Federal

Rule of Evidence 401 defines relevant evidence as that which

“has any tendency to make a fact more or less probable than it

would be without the evidence,” so long as “the fact is of

consequence in determining the action.” Fed. R. Evid. 401. The

Second Circuit has characterized the relevance threshold as

“very low.” See United States v. White, 692 F.3d 235, 246 (2d

Cir. 2012) (quoting United States v. Al-Moayad, 545 F.3d 139,

176 (2d Cir. 2008)). To be relevant, evidence need not prove a

fact in issue by itself, but only have “any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.” McKoy v. North Carolina, 494

U.S. 433, 440 (1990) (quoting New Jersey v. T.L.O., 469 U.S.

325, 345 (1985)).

I. Relevance in Excessive Force Cases

Relevant evidence in an excessive force case concerns

“whether the officers’ actions are ‘objectively reasonable’ in

light of the facts and circumstances confronting them, without

regard to their underlying intent or motivation.” Bryant v.

City of New York, 404 F.3d 128, 136 (2d Cir. 2005) (internal

quotation mark omitted). According to the Supreme Court, the

relevant factors for a jury to consider in determining whether

force by the police was excessive include: (1) the severity of

the crime at issue; (2) whether the plaintiff posed an immediate

threat to the safety of the defendants; (3) and whether the

plaintiff actively resisted arrest or attempted to evade arrest

by flight. Outlaw v. City of Hartford, 884 F.3d 351, 366 (2d

Cir. 2018) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).

This determination requires the jury to look to the totality of

the circumstances. Lennon v. Miller, 66 F.3d 416, 425 (2d Cir.

1995); see also Rogoz v. City of Hartford, 796 F.3d 236, 246 (2d

Cir. 2015). “The ‘reasonableness’ of the amount of force used

thus ‘must be judged from the perspective of a reasonable

officer on the scene . . . at the moment’ the force is used.”

Rogoz, 796 F.3d at 246-47 (quoting Graham, 490 U.S. at 396).

II. Rule 403 Probative-Prejudice Balancing

In addition to the relevance of the evidence that the

parties seek to offer or exclude in their motions, several other

Rules bear on the court’s determination of admissibility.

Evidence that is otherwise admissible under the Rules is

generally subject to the probative-prejudice balancing analysis

provided in Federal Rule of Evidence 403 (“Rule 403”). Rule 403

permits the exclusion of relevant evidence, “if its probative

value is substantially outweighed by a danger of . . . unfair

prejudice, confusing the issues, [or] misleading the jury.”

Fed. R. Evid. 403. District courts wield broad discretion in

making decisions under this probative-prejudice balancing test.

See Fiacco v. City of Rensselaer, N.Y., 783 F.2d 319, 327-28 (2d

Cir. 1986); see also United States v. Abu-Jihaad, 630 F.3d 102,

131 (2d Cir. 2010) (“We review a district court’s evidentiary

rulings deferentially, mindful of its superior position to

assess relevancy and to weigh the probative value of evidence

against its potential for unfair prejudice.”) “In making a Rule

403 determination, courts should ask whether the evidence's

proper value ‘is more than matched by [the possibility] . . .

that it will divert the jury from the facts which should control

their verdict.’” Bensen v. Am. Ultramar Ltd., No. 92-cv-4420,

1996 WL 422262, at *6 (S.D.N.Y. July 29, 1996) (quoting United

States v. Krulewitch, 145 F.2d 76, 80 (2d Cir. 1944)). The

court applies the foregoing analysis to the parties’ pending

motions and objections.

DISCUSSION

The operative claims in this case have been

substantially narrowed following this court’s decision granting

in part and denying in part defendants’ motion for summary

judgment. See Scoma v. City of New York, No. 16-cv-6693 (KAM)

(SJB), 2021 WL 230295 (E.D.N.Y. Jan. 22, 2021). Plaintiff

voluntarily dismissed several other claims originally pled in

the second amended complaint. (See ECF No. 75.) Accordingly,

as confirmed by the parties at a May 3, 2021 status conference,

all that remains to be tried is plaintiff’s claim that excessive

force was used in the moments after plaintiff was tased and as

he moved or was moved from the interior stairwell to be

handcuffed on September 19, 2015.

Plaintiff’s Motions:

In the instant motions, plaintiff moves to preclude

defendants from introducing: (i) evidence or testimony regarding

information made known to police before defendant Brander used

the allegedly excessive force; (ii) testimony by Officers

Fernando Caches, Argely Delacruz, Francisco Allende, as well as

plaintiff’s neighbor Christina Cosares as prejudicial and

irrelevant; (iii) evidence or testimony regarding prior lawsuits

brought by plaintiff; (iv) evidence related to certain medical

records unrelated to plaintiff’s left elbow; (v) certain

evidence concerning plaintiff’s physique, workout regimen, and

medical steroid use; (vi) evidence of plaintiff’s prior arrest

and conviction history; and (vii) pleadings and other litigation

documents filed by plaintiff in this action. (See generally Pl.

Mem.)

Defendants’ Motions:

Defendants move to preclude: (i) evidence of

disciplinary histories and prior lawsuits against defendant

officers; (ii) suggestions by plaintiff to the jury for a

specific dollar amount to be awarded as damages; (iii) any

charge to the jury regarding punitive damages; (v) evidence

relating to the employment or indemnification of the defendant

officers by New York City, including references to defense

counsel as “City attorneys.” (See generally Def. Mem.)

Trial Exhibits:

Plaintiff objects to the admission of some of

defendants’ exhibits under the Federal Rules of Evidence, and to

documentary evidence from plaintiff’s prior civil actions and

the litigation documents in this case. Defendants oppose the

introduction of certain medical records due to a lack of proper

foundation and authentication. (See ECF No. 119, Def. Obj.)

The court now addresses the parties’ motions in limine and

objections in turn.

I. Voluntary Dismissal of Certain Named Defendants

As an initial matter, the court will address

plaintiff’s request to voluntarily dismiss several named

defendants. Plaintiff initially sought to dismiss his claims

against defendants Azeem Chatha, Fernando Caches, Damir Vukic,

Argely Delacruz, Francisco Allende, Spencer Craven, and Gregory

Mannino pursuant to Federal Rule of Civil Procedure 41(a)(2)

without prejudice. (Pl. Mem. at 2-3.) Defendants agree that

certain officers should be dismissed, but argue that any

dismissal should be with prejudice because it would be

inherently unjust for plaintiff to dismiss claims against the

named defendants without prejudice, on the eve of trial after

five years of litigation, and avoid any judgment on the merits.

(Def. Opp. at 1-3.)

Absent a stipulation joined by all parties, Fed. R.

Civ. P. 41(a)(1)(ii), a federal action may be voluntary

dismissed by plaintiff after an answer has been filed only “upon

order of the court and upon such terms and conditions as the

court deems proper.” Fed. R. Civ. P. 41(a)(2). “Unless

otherwise specified in the order, [such] a dismissal ... is

without prejudice,” id., but permission to dismiss an action

under this rule “may be conditioned upon the plaintiff

fulfilling whatever terms and conditions the district court, in

its discretion, deems necessary to offset the possible prejudice

that the defendant may otherwise suffer from the plaintiff

dismissing his complaint without prejudice, Shady Recs., Inc. v.

Source Enterprises, Inc., 371 F. Supp. 2d 394, 396 (S.D.N.Y.

2005), including a requirement that the dismissal be with

prejudice. See Gravatt v. Columbia Univ., 845 F.2d 54, 56 (2d

Cir.1988) (district court may convert voluntary dismissal

without prejudice to one with prejudice, provided plaintiff is

given a subsequent opportunity to withdraw motion).

Here, the court agrees that it would be manifestly

unjust for plaintiff to dismiss certain named defendants without

prejudice on the eve of trial after five years of lengthy

litigation. “To permit the plaintiff to discontinue the case at

this late stage, and then to reinstate the same action whenever

it felt like it in the future, would authorize intolerable

manipulation of the Court’s calendar and the defendants’

resources.” Shady Recs., Inc., 371 F. Supp. 2d at 396.

Accordingly, as the court advised the parties at a status

conference on May 3, 2021, any dismissal of claims against the

defendant officers at this time will only be permitted if the

dismissal is with prejudice. See id. (granting motion to

dismiss pursuant to Rule 41(a)(2) and determining dismissal

should be with prejudice where the case was trial ready).

Plaintiff has stated his intention to dismiss defendants Azeem

Chatha, Fernando Caches, Damir Vukic, Argely Delacruz, Francisco

Allende, Spencer Craven, and Gregory Mannino with prejudice (see

ECF No. 127), and the court orders that those defendants are

dismissed with prejudice. See Gravatt, 845 F.2d at 56 (“[A]n

opportunity to withdraw a motion for dismissal without prejudice

must be afforded a plaintiff before the dismissal is converted

to one with prejudice”).

II. Plaintiff’s Motions in Limine

A. References to “Pre-Tasing” Information

Plaintiff seeks to preclude evidence or testimony

regarding information made known to police before defendant

Brander used the allegedly excessive force (referred to

hereafter as the “pre-tasing” information). (Pl. Mem. at 3-9.)

Specifically, plaintiff identifies the following categories of

testimony and documents as purportedly “both irrelevant an

prejudicial”: any information or observations allegedly learned

from Christina Cosares, any information or observations relating

to Brielle Scoma, any testimony regarding any purported fighting

or yelling heard from plaintiff’s home by the initial responding

officers, the event chronology offered by defendants (see ECF

No. 118, Defendants’ Exhibit List, Ex. B), any information or

events preceding defendant Brander’s arrival to the scene. (Pl.

Mem. at 7-8.) Defendants oppose plaintiff’s motion to preclude

the pre-tasing information known to the officers, countering

that such evidence remains relevant to the jury’s evaluation of

defendants’ use of force under the Fourth Amendment of the

Constitution. (Def. Mem. at 3-8; Def. Opp. at 3-5.)

As discussed above and in this court’s prior decision

granting in part and denying in part defendants’ motion for

summary judgment, “claims that law enforcement officers have

used excessive force . . . in the course of an arrest,

investigatory stop, or other seizure of a free citizen should be

analyzed under the Fourth Amendment and its reasonableness

standard.” Ketcham v. City of Mount Vernon, 992 F.3d 144, 148

(2d Cir. 2021) (citing Graham v. Connor, 490 U.S. 386, 395

(1989)). The reasonableness of the force used “requires careful

attention to the facts and circumstances of each particular

case, including (1) the severity of the crime at issue, (2)

whether the suspect poses an immediate threat to the safety of

the officers or others, and (3) whether [the suspect] is

actively resisting arrest or attempting to evade arrest by

flight.” Id. at 148-49. This standard focuses on “‘a

reasonable officer on the scene, rather than with the 20/20

vision of hindsight.’” Brown v. City of New York, 798 F.3d 94,

100 (2d Cir. 2015) (quoting Graham, 490 U.S. at 397). Thus,

“[a] court’s role in considering excessive force claims is to

determine whether a jury, instructed as to the relevant factors,

could reasonably find that the force used was excessive.” Id.

at 103.

Applying these factors here, the court agrees with

defendants that the pre-tasing information plaintiff seeks to

preclude is directly relevant to the jury’s evaluation of

defendant Brander’s alleged use of excessive force when

restraining plaintiff on September 19, 2015. As summarized in

this court’s summary judgment decision, the undisputed facts of

this case indicate that, based on the pre-tasing information

described above, “a reasonable officer could conclude that

plaintiff, who refused to comply with the Officers’ directions

after reportedly assaulting his wife, was reasonably perceived

as an individual who had engaged in violence and posed a danger

not only to himself, but to the Officers and others in the

house.” Scoma, 2021 WL 230295, at *8. The pre-tasing

information was critically relevant to the court’s determination

that defendant Allende’s use of a taser (twice) was reasonable

under the circumstances and will again be relevant to the jury’s

determination as to whether defendant Brander’s use of force

immediately following the tasing was unconstitutional. See id.

at *7-8. Indeed, the first Graham factor expressly considers

the “nature and severity of the crime leading to the arrest,”

which necessarily requires some explanation regarding how and

why the defendant officers -- including defendant Brander --

arrived at the scene of the reported crime, plaintiff’s home,

and what information the officers possessed at the time force

was used in tasing, arresting, and handcuffing plaintiff.

Graham, 490 U.S. at 396; see Amnesty Am. v. Town of W. Hartford,

361 F.3d 113, 123 (2d Cir. 2004) (“[T]he factfinder must

determine whether, in light of the totality of the circumstances

faced by the arresting officer, the amount of force used was

objectively reasonable at the time.”).

Thus, contrary to plaintiff’s contention that the

facts relevant to the jury’s analysis “should be limited to what

plaintiff allegedly did after being tased and before

handcuffing,” the court concludes that evidence of the pre-

tasing information available to the officers, which includes

testimony from numerous officers and witnesses at the scene, is

relevant to the question of whether defendants used excessive

force after the tasing because it is the type of information

that a reasonable police officer would consider in determining

what appropriate action to take when faced with the

circumstances presented on September 19, 2015. See Amnesty Am.,

361 F.3d at 124 (“In evaluating plaintiffs’ allegations, the

factfinder will have to judge the officers’ actions in light of

the situation as it appeared at the time.”). Although some

events and information known to the officers occurred before

defendant Brander’s arrival at plaintiff’s home, the jury cannot

assess the reasonableness of defendant Brander’s response after

plaintiff was tased without some preliminary knowledge about the

events and circumstances leading to plaintiff’s arrest.

With respect to probable cause, the court has held

that defendant Allende was entitled to rely on information

learned from his fellow officers in determining that probable

cause existed to arrest plaintiff for an ongoing domestic

assault. Similarly, in determining whether the use of force was

reasonable under the circumstances, the officers could rely on

the information learned from their fellow officers and on their

own observations at the scene. See Scoma, 2021 WL 230295, at

*7; see also Cordero v. City of New York, 282 F. Supp. 3d 549,

561 (E.D.N.Y. 2017) (“The fellow officer rule, also known as the

collective knowledge doctrine, allows one officer to make an

arrest based on an instruction or information passed from one

officer to another.” (citing United States v. Hensley, 469 U.S.

221, 233 (1985))). Defendant Brander testified that when he

arrived at plaintiff’s home, he learned from another officer

that plaintiff, who was resisting arrest, was inside the home

and had allegedly assaulted a female. (See Pl. Mem. at 5-6

(citing Brander Dep. 34:2-35:16).) Thus, under the same

reasoning discussed above, defendant Brander was entitled to

rely on the pre-tasing information learned from his fellow

officers in determining the appropriate action to take. This

pre-tasing information necessarily included information conveyed

to the officers at the scene of the crime by Ms. Cosares and Ms.

Scoma before defendant Brander arrived, and, accordingly, is

relevant and admissible.1 For these reasons, the court denies

plaintiff’s motion in limine to preclude all pre-tasing

information, including defendants’ trial exhibit B (the event

chronology).

B. “Unnecessary” Witnesses

Plaintiff moves to preclude certain “unnecessary

witnesses” that defendants intend to call, who may present

cumulative evidence regarding the events and circumstances

leading to plaintiff’s arrest. (Pl. Mem. at 9-12.)

Specifically, plaintiff seeks to preclude defendants from

calling defendant Officers Fernando Caches, Argely Delacruz, and

Franciscon Allende, as well as plaintiff’s neighbor Christina

Cosares. (Pl. Mem. at 9-12.) Relying on Rule 403, plaintiff

argues that certain officers should be precluded because they

did not relay any information to defendant Brander, were outside

the plaintiff’s home at the time of the use of force, and would

unnecessarily waste the time of the court. (Id. at 9-11.) In

response, defendants counter that testimony from certain

officers are relevant in assessing plaintiff’s credibility and

1 The court agrees, however, that certain information not including the

pre-tasing information, such as plaintiff’s current relationship status with

Brielle Scoma is irrelevant and shall be excluded at trial.

also the reasonableness of force used by the defendants. (Def.

Opp. at 9-13.) Defendants also agree, however, that should

plaintiffs dismiss certain defendants, those defendants’

testimony may be unnecessary. (Id.)

As an initial matter, plaintiff has agreed to dismiss

with prejudice his claims against defendants Officers Azeem

Chatha, Fernando Caches, Damir Vukic, Argely Delacruz, Francisco

Allende, Spencer Craven, and Gregory Mannino pursuant to Federal

Rule of Civil Procedure 41(a)(2). (See ECF No. 127.) As

discussed above, see supra Discussion I, because plaintiff

agreed to dismiss these defendants with prejudice, the court

agrees that defendants should carefully consider whether any

testimony from the dismissed officers is necessary or cumulative

to defendants’ theory of the case and not unfairly prejudicial

to plaintiff. To the extent possible, the parties are

encouraged to stipulate to any facts derived from or relating to

the dismissed defendant officers.

With respect to plaintiff’s remaining objections to

testimony from Officers Fernando Caches, Argely Delacruz, and

Francisco Allende, the court denies plaintiff’s motion to

preclude these officers in toto. Rule 403 permits the exclusion

of relevant evidence, “if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the

issues, [or] misleading the jury.” Fed. R. Evid. 403.

“[E]vidence that bears on the objective reasonableness of the

officers’ conduct is relevant to the excessive force claim.”

Jean-Laurent, 840 F. Supp. 2d at 537.

Here, the evidence that plaintiff seeks to preclude is

directly relevant to the issue of whether defendants acted

reasonably, and excluding it would unduly prejudice defendants’

ability to defend against plaintiff's excessive force claim.

Although introduction of the evidence may undermine plaintiff’s

claim, nothing in the record supports plaintiff’s argument that

such evidence amounts to “unfair prejudice” within the meaning

of Rule 403. See Fed. R. Evid. 403; see also United States v.

Diaz, 878 F.2d 608, 615 (2d Cir. 1989) (“Unfair prejudice within

[Rule 403’s] context means an undue tendency to suggest decision

on an improper basis, commonly, though not necessarily, an

emotional one. . . . The logical inferences resulting from

proffered evidence do not engender the unfair prejudice against

which Rule 403 is directed.” (cleaned up)).

Plaintiff seeks to preclude Officer Caches’s testimony

because Officer Caches testified to not having relayed any

information to defendant Brander. (Pl. Mem. at 9-10.)

Nevertheless, as discussed above, the jury cannot assess the

reasonableness of defendant Brander’s response after the tasing

without some preliminary knowledge about the events and

circumstances leading to plaintiff’s arrest and the use of

force. Thus, the officers’ interactions with Ms. Cosares and

Ms. Scoma before defendant Brander arrived were ultimately

relayed to defendant Brander -- even if not directly by Officer

Caches -- when defendant Brander was informed by an officer that

a “male [was] inside the place had choked and assaulted a female

who was outside and that he was refusing to be arrested and

wouldn’t come out of the house.” (Pl. Mem. at 5 (citing Brander

Dep. 34:2-35:16).) Plaintiff’s statements made to Officer

Caches in the ambulance, including plaintiff’s alleged reference

to a potential lawsuit, are relevant to plaintiff’s frame of

mind and his ongoing resistance to arrest. The admissibility of

plaintiff’s other lawsuits is discussed infra Discussion II.C.

Similarly, the court declines to preclude testimony by

Officer Delacruz, who was outside the plaintiff’s home with

plaintiff’s wife, because, as noted above, the officers’

impressions of the pre-tasing information was necessarily

relevant to analyzing whether defendant Brander’s actions were

unconstitutional. Plaintiff argues that because Officer

Delacruz was outside the home at the time the excessive force

was used, Delacruz can offer no relevant testimony regarding the

use of force. (Pl. Mem. at 10.) Moreover, plaintiff seeks to

preclude any interactions or conversations Officer Delacruz had

with Ms. Scoma or Ms. Cosares. (Id. at 11.) As noted above,

however, the substance of the conversations with Ms. Scoma or

Ms. Cosares were ultimately relayed to defendant Brander through

another officer and therefore are relevant to the jury’s

analysis of plaintiff’s arrest, his perceived resistance to

arrest, and the officers’ use of force, and will not be

excluded. See United States v. Herron, 18 F. Supp. 3d 214, 228

(E.D.N.Y. 2014) (“The collective knowledge doctrine allows for

the imputation of knowledge between officers when one officer,

having acquired probable cause, instructs another officer to

conduct a search or arrest, even if the latter is far less

informed.”); United States v. Babilonia, 854 F.3d 163, 178 (2d

Cir. 2017).

Finally, the court declines to preclude Officer

Allende’s testimony because, even though Officer Allende

testified to not seeing plaintiff being handcuffed, Officer

Allende’s actions in firing the taser are relevant to the jury’s

determination of whether defendant Brander thereafter used

excessive force in applying the handcuffs. In other words,

Officer Allende’s testimony regarding the deployment of the

taser and the circumstances surrounding the incident are

relevant information that a jury should consider when assessing

the reasonableness of defendant Brander’s use of force in

restraining plaintiff. Plaintiff’s alleged statement to Officer

Allende that plaintiff was “not going back to jail” is relevant

to plaintiff’s state of mind and motive in what the officers

perceived as plaintiff’s refusal to comply with their orders to

submit to handcuffs after he was advised that he was under

arrest. The admission of plaintiff’s criminal history is

discussed below. See infra Discussion II.F. For these reasons,

the court denies plaintiff’s motion to preclude testimony from

Officers Caches, Delacruz, and Allende in toto and further

declines to preliminarily limit the contents of the officers’

testimony regarding the pre-tasing information. Nonetheless,

the court agrees with plaintiff that defendants should not

present testimony or evidence that is unnecessarily cumulative

when describing the pre-tasing events.

C. Plaintiff's Prior Lawsuits and Related Exhibits

Plaintiff requests that “any evidence or testimony

regarding unrelated personal injury lawsuits brought by

plaintiff” be precluded from trial under Rule 402 or 403 because

any relevance is outweighed by significant risk of prejudice,

and the “only import” would be to demonstrate that plaintiff is

a “chronic litigant” or a criminal. (Pl. Mem. at 12-14.)

Defendants counter that plaintiff’s prior lawsuits are

relevant in showing plaintiff’s “motive, plan and scheme” in

orchestrating a lawsuit against defendants for financial gain.

(Def. Opp. at 13.) Specifically, defendants identify two cases

filed by plaintiff in 2002 and 2013 respectively, where

plaintiff sought monetary relief for personal injuries: (1)

Scoma v. United States, No. 02-cv-2970 (JG) (E.D.N.Y. 2002), and

(2) John Scoma v. Man-Dell Food Stores, Inc., 3250/2013 (Kings

Cty. Sup. Ct.). Defendants assert that these two lawsuits are

“sufficiently similar to demonstrate a pattern, plan and scheme

by which plaintiff would intentionally place himself at risk of

relatively minor injuries” to “seek financial gain through

litigation.” (Def. Opp. at 16-17.)

Rule 404(b)(1) prohibits the admission of evidence of

“a crime, wrong, or other act” to “prove a person’s character in

order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1). Rule

404(b)(2), however, provides that such evidence “may be

admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Fed. R. Evid.

404(b)(2).

The Second Circuit has explained that “[l]itigiousness

is the sort of character trait with which Rule 404(b) is

concerned.” Outley v. City of New York, 837 F.2d 587, 592 (2d

Cir. 1988) (“[A] plaintiff’s litigiousness may have some slight

probative value, but that value is outweighed by the substantial

danger of jury bias against the chronic litigant.”); see also

Raysor v. Port Authority of New York and New Jersey, 768 F.2d

34, 40 (2d Cir. 1985). In similar circumstances, courts have

generally precluded evidence of prior lawsuits to show the

plaintiff’s litigiousness unless there was evidence that the

prior lawsuits were fraudulently filed. See Outley, 837 F.2d at

594 (excluding evidence of prior lawsuits but noting a

distinction “where a party has filed a series of fraudulent

lawsuits and there is substantial evidence that the prior

lawsuits amounted to a fraudulent pattern”); Walker v. Schult,

365 F. Supp. 3d 266, 281 (N.D.N.Y. 2019) (excluding evidence of

prior grievances where defendants failed to show “other

grievances were fraudulent”); Elhannon LLC v. F.A. Bartlett Tree

Expert Co., No. 14-cv-262, 2018 WL 6040687, at *3 (D. Vt. Nov.

19, 2018) (excluding evidence of prior lawsuits into evidence

where the risk of prejudice was high and defendant failed to

show the prior suits were fraudulent).

Here, the court agrees with plaintiff that defendants

have failed to show that plaintiff’s prior lawsuit against the

United States was fraudulently filed or relevant to this instant

case. In Scoma v. United States, No. 02-cv-2970 (JG)

(E.D.N.Y.), plaintiff sought damages for a leg injury he

allegedly sustained while playing basketball on the recreation

deck of the Metropolitan Detention Center (“MDC”) in Brooklyn,

New York. This court granted summary judgment to the United

States and dismissed the case after concluding that plaintiff

assumed the risk of injury by engaging in athletic activity.

See Scoma, 2004 WL 40511, at *3-4 (E.D.N.Y. Jan. 7, 2004).

Although this prior action involved a personal injury, the

factual circumstances are sufficiently distinct from the instant

case that introducing this prior action may lead to jury

confusion or unfair prejudice against defendant as a chronic

litigant or criminal. Further, although the court granted

summary judgment in favor of the government, the court did not

conclude that plaintiff’s lawsuit was fraudulent. See Scoma,

2004 WL 40511, at *3-4. Moreover, even if the court agreed with

defendants that plaintiff’s prior lawsuit may show some motive

or intent, the “slight probative value” is “outweighed by the

substantial danger of jury bias against the chronic litigant.”

Outley, 837 F.2d at 592; Marcic v. Reinauer Transp. Companies,

397 F.3d 120, 125 (2d Cir. 2005) (“A trial court has a duty to

prevent charges of litigiousness if they are likely to result in

undue prejudice that is not substantially outweighed by their

probative value.”); see, e.g., Ragin v. Newburgh Enlarged City

Sch. Dist., No. 10-cv-2797 (JFK), 2011 WL 2183175, at *2

(S.D.N.Y. June 3, 2011) (“The introduction of evidence

concerning [plaintiff’s] past litigation would distract the jury

from the central issues in the trial and may well lead to

prejudice against [plaintiff] as a frequent litigant. We would

be getting too close to propensity evidence.”). Accordingly,

“if defendants can prove that plaintiff has made similar claims

that were found to be fraudulent, they may cross-examine

[plaintiff] concerning these litigations in order to impeach his

credibility at trial.” Young v. Calhoun, No. 85-cv-7584 (SWK),

1995 WL 169020, at *6 (S.D.N.Y. Apr. 10, 1995). Because the

court cannot conclude that plaintiff’s prior lawsuit against the

United States was fraudulent, however, and due to the risk of

unfair prejudice against plaintiff, the court grants plaintiff’s

motion in limine to preclude admission of evidence regarding

Scoma v. United States, No. 02-cv-2970 (JG) (E.D.N.Y. 2002) at

the present time.

Next, plaintiff also seeks to preclude any evidence

involving plaintiff’s personal injury lawsuit filed February 13,

2013 against a grocery store. In John Scoma v. Man-Dell Food

Stores, Inc., 3250/2013 (Kings Cty. Sup. Ct.) (the “Key Foods

lawsuit”), plaintiff brought suit after he tripped over an

obstacle that was allegedly placed on the floor by a Key Foods

Supermarket employee. (See ECF No. 101-6, Scheiner Declaration,

Ex. E, Complaint at 2.) Notably, in the Key Foods lawsuit,

plaintiff alleged that he sustained:

[S]erious, severe and permanent injuries,

including, among others, injury to the left

elbow; . . . torn tendons of the left elbow;

subluxation of the ulnar nerve in the left

elbow; suffered transposition flexor damage to

the left elbow; suffered nerve damage to the

left elbow . . . suffered damage to the u1nar

nerve of the left elbow; was forced to undergo

debridement of the flexor tendon of the left

elbow; suffered loss of range of motion in the

left elbow and arm; suffered scarring of the

left elbow; was forced to undergo painful and

extensive physical therapy; suffered

derangement of the left elbow; suffered torn

ligaments in the left elbow.

Id. at 4. Thus, plaintiff alleged that the injuries he

sustained in the Key Foods lawsuit were inflicted on the same

location of his body that is the focus of his injury in this

case -- his left elbow. See Scoma, 2021 WL 230295, at *4 (“An

x-ray was taken of plaintiff’s left elbow and he was diagnosed

with a fracture to his ‘coronoid process proximal ulna’ and a

‘suspected fracture’ to his proximal radial head.”). Moreover,

it is undisputed that due to injuries related to his Key Foods

lawsuit, plaintiff underwent two surgeries to repair his left

elbow in 2011 and again in 2015, just before the arrest at issue

in the instant action. (See ECF No. 80-6, Scoma Deposition at

90:16-92:7.)

Accordingly, unlike plaintiff’s other federal lawsuit

regarding a leg injury sustained while playing basketball, the

Key Foods lawsuit is directly relevant and admissible because

the injuries and potential damages overlap in both cases. The

court agrees with defendants that the jury should be entitled to

consider that plaintiff allegedly suffered an injury to his left

elbow from a prior incident and sought compensation for that

injury. Indeed, at his deposition, plaintiff described the pain

he suffered while being handcuffed “[b]ecause [he] was just

recovering from a second surgery” to repair his elbow following

the Key Foods incident. (Scoma Dep. at 69:20-25); Brewer v.

Jones, 222 F. App’x 69, 70 (2d Cir. 2007) (summary order)

(“[E]vidence relevant to show a possible cause of [a

plaintiff’s] injury unrelated to the acts of the defendant,” may

be admissible.)

Thus, the probative value of evidence from the Key

Foods lawsuit is not substantially outweighed by the risk of

unfair prejudice to plaintiff. Moreover, the court concludes

that defendants shall also be permitted to introduce evidence of

testimony provided in the Key Foods lawsuit for impeachment

purposes. See Jean-Laurent, 840 F. Supp. 2d at 543 (“To the

extent that plaintiff testifies at trial that he suffered

emotional damages as a result of the June 11, 2002 strip search,

defendants may introduce limited deposition testimony given by

plaintiff in [a previous lawsuit] as a prior inconsistent

statement as to causation under Federal Rule of Evidence

801(d)(1)(A).”). In addition, the plaintiff’s deposition

testimony offered by defendants is admissible as a party

admission under Federal Rule of Evidence 801(d)(2)(A).

Accordingly, for the reasons set forth above, the

court grants in part and denies in part plaintiff’s motion in

limine to preclude the prior lawsuits. Defendants are precluded

from referring to or offering evidence regarding Scoma v. United

States, No. 02-cv-2970 (JG) (E.D.N.Y.), but may refer to

relevant evidence and testimony regarding plaintiff’s Key Foods

lawsuit.

D. Plaintiff's Medical History

Plaintiff also moves to preclude the introduction of

testimony any medical evidence that are unrelated to plaintiff’s

left elbow. (Pl. Mem. at 14-15.) Defendants concede that,

assuming plaintiff’s claimed damages are limited to his left

elbow, evidence unrelated to plaintiff’s left elbow is not

relevant and will not be introduced. (Def. Opp. at 19.) To the

extent plaintiff’s damages are limited to his left elbow, the

court agrees that unrelated medical evidence is not relevant or

admissible, unless the claimed damages may be related to other

medical conditions.

E. Plaintiff's Facebook Photo, Workout Regimen, and

Medical Steroid Use

Plaintiff moves to preclude the introduction of

defendants’ trial Exhibit A, which is a photo of plaintiff from

Facebook, (see ECF No. 118, Defendants’ Exhibit List, Ex. A (the

“Facebook photo”)). Plaintiff also seeks to preclude defendants

“from eliciting testimony regarding plaintiff’s workout regimen

or medically prescribed steroids.” (Pl. Mem. at 15-16.)

Plaintiff argues that such evidence would only serve as a

distraction from plaintiff’s excessive force claim. (Id.)

Defendants counter that such evidence is relevant and admissible

because plaintiff authenticated the Facebook photo at his

deposition and his workout regimen and medical steroid use are

relevant to his strength at the time of his incident and the

degree of his injuries. (Def. Opp. at 20-21.)

As an initial matter, the court agrees that the

plaintiff’s Facebook photo is relevant and admissible because it

shows the plaintiff’s physique at the time of the incident and

was authenticated by plaintiff during his deposition. In

relevant part, plaintiff confirmed the authenticity of the

Facebook photo when it was presented at his deposition:

Q: [T]hese are photographs I downloaded from

your Facebook page. And I just wanted to ask

you . . . whether you think that that

photograph depicts you, on the way that you

would have appeared to the officers who were

in the house during the incident

Q: In other words, your physical shape; is

that the physique that you had on the date

of September 19th

A: Approximately, yes.

(ECF No. 80-6, Scoma Deposition, 103:21-104:7.) Thus, as

conceded by plaintiff, the Facebook photo shows his approximate

physique on September 19, 2015. Accordingly, the photograph has

probative value because it is relevant to a reasonable officer’s

perspective when confronted with the circumstances at the time

of plaintiff’s arrest, see Graham, 490 U.S. at 397, and is not

substantially outweighed by unfair prejudice to the plaintiff.

For these reasons, plaintiff’s motion to preclude the Facebook

photo is denied.

With respect to plaintiff’s workout regimen and

medical steroid use at the time of his arrest, the court

concludes that such evidence has some probative value for the

reasons explained below. Specifically, the court finds that in

analyzing the Graham factors, the Facebook photo will provide

the jury the opportunity to assess how a reasonable officer

might perceive and respond to the circumstances present on

September 19, 2015 -- specifically, how a reasonable officer

would evaluate the force necessary to effect an arrest of an

individual perceived to be of “large and muscular physical

stature,” who refuses to comply with the officers’ orders.

Scoma, 2021 WL 230295, at *8.

Whether to permit the jury to also consider

plaintiff’s workout regimen and medical steroid use --

information unknown to the officers at the scene of the incident

-- raises considerations of a risk of unfair prejudice to

plaintiff. See Fed. R. Evid. 403. To be sure, defendants

represent that they intend to use the workout and steroid

evidence to show plaintiff’s “strength at the time of the

incident” and “his belligerence and aggressiveness when

confronting the police.” (Def. Opp. at 21.) The court finds

that plaintiff’s Facebook photo will permit the jury to

understand the officers’ assessment of plaintiff’s strength.

Relevant testimony from the officers and plaintiff will permit

the jury to make any necessary credibility determinations

regarding plaintiff’s demeanor.

The plaintiff’s workout regimen at the time of the

incident undergirding this case is precluded because officers

were unaware of it. Evidence of plaintiff’s workout regimen and

work as a personal trainer after he was arrested is relevant to

the magnitude of his injuries and damages. Evidence of

plaintiff’s use of steroids, a fact also unknown to the officers

at the time of his arrest, is relevant and admissible if: (1)

the medical records establish that plaintiff was taking

steroids; and (2) a treating or expert medical source testifies

to the effect of steroids on muscle mass and demeanor.2 Evidence

of steroid use is relevant to the parties’ testimony about

plaintiff’s appearance and conduct on the date of his arrest.

For these reasons, the court grants in part and denies in part

plaintiff’s motion in limine, and rules that the Facebook photo

2 The court respectfully disagrees with defendants’ contention that a

jury would necessarily understand, without fact or expert medical testimony,

that steroid use enhances muscle mass and increases irritability and anger in

some users. The court agrees that it would be unfairly prejudicial to permit

defendants to present evidence of steroid use to the jury without fact or

expert medical testimony explaining the contents and meaning of plaintiff’s

medical records and the effects of steroids on persons with low testosterone.

is admissible, plaintiff’s workout regimen at the time of his

arrest is not admissible, his workout regimen after his arrest

is admissible as to damages, and plaintiff’s medical steroid use

is conditionally admissible.

F. Plaintiff’s Criminal History

Plaintiff also seeks to preclude evidence or testimony

relating to plaintiff's arrest and conviction history. (Pl.

Mem. at 16-19.) Plaintiff argues that such evidence, including

plaintiff's New York State Division of Criminal Justice Services

Rap Sheet (“rap sheet”) (see ECF No. 118, Defendants’ Exhibit

List, Ex. D), is irrelevant, not admissible, and constitutes

improper character evidence under Rule 404. (Id.) Moreover,

plaintiff seeks to preclude defendants from introducing

testimony that plaintiff was discharged from the United States

Marine Corps in 1989 with a less than honorable discharge. (Id.

at 18-19.)

In response, defendants represent that they do not

intend to elicit any evidence regarding plaintiff’s military

discharge or any arrests that did not lead to conviction, other

than the arrest in this case to the extent that it is relevant

to the use of force. (Def. Opp. at 22.) Nonetheless,

defendants argue that plaintiff’s October 20, 2000 racketeering

conviction should be admitted because the conduct is “highly

relevant to the plaintiff’s veracity” and not unfairly

prejudicial. (Id. at 23-24.)

As defendants represent that they do not intend to

introduce evidence of plaintiff’s prior arrests, convictions,

and discharge from the military, the court grants plaintiff’s

motion in limine to preclude the rap sheet and any evidence or

testimony related to plaintiff’s criminal history as described

above. The court further grants plaintiff’s motion to preclude

his racketeering conviction for the following reasons.

On or about October 10, 2000, plaintiff was convicted,

upon a guilty plea, of one count of racketeering in violation of

18 U.S.C. § 1962(c), and sentenced to 15 months’ imprisonment.

See Scoma v. United States, No. 02-cv-2970 (JG), 2004 WL 40511,

at *2, 15 n.1 (E.D.N.Y. Jan. 7, 2004). At his deposition,

plaintiff testified that the substance of this crime was two

bank burglaries, allegedly occurring in the context of organized

crime. (See ECF No. 101-9, Scoma Deposition, 119:1-122:15.)

Because plaintiff’s October 20, 2000 racketeering conviction

occurred more than ten years ago, Rule 609(b) applies.

Under Rule 609(b), a felony conviction that is more

than ten years old is admissible only if “its probative value,

supported by specific facts and circumstances, substantially

outweighs its prejudicial effect.” Fed. R. Evid. 609(b)(1). In

such circumstances, “[e]vidence of the conviction is admissible

only if: (1) its probative value, supported by specific facts

and circumstances, substantially outweighs its prejudicial

effect; and (2) the proponent gives an adverse party reasonable

written notice of the intent to use it so that the party has a

fair opportunity to contest its use.” Id. When balancing the

probative value of a conviction against its prejudicial effect,

courts will examine four factors: “(1) the impeachment value of

the prior crime, (2) the remoteness of the prior conviction, (3)

the similarity between the past crime and the conduct at issue,

and (4) the importance of the credibility of the witness.”

Daniels v. Loizzo, 986 F. Supp. 245, 450 (S.D.N.Y. 1997) (citing

4 Weinstein’s Fed. Evid. § 609.04[2][a], at 609-20 (1997);

United States v. Hayes, 553 F.2d 824, 828 (2d Cir. 1997)). In

reviewing the admission of convictions under Rule 609(b), the

Second Circuit requires “the district judge [to] make an on-the-

record finding based on specific facts and circumstances that

the probative value of the evidence substantially outweighs the

danger of unfair prejudice.” Jones v. New York City Health &

Hosps. Corp., 102 F. App’x 223, 226 (2d Cir. 2004) (summary

order) (citing United States v. Mahler, 579 F.2d 730, 734 (2d

Cir. 1978)).

Having reviewed the record, the court does not find

that the probative value of plaintiff’s racketeering conviction

“substantially outweighs” the prejudicial effect of admitting

such stale conviction. See Fed. R. Evid. 609(b). The Second

Circuit has recognized that Congress intended that convictions

more than ten years old be admitted ‘very rarely and only in

exceptional circumstances.’” Daniels, 985 F.Supp. at 252

(quoting Zinman v. Black & Decker, Inc., 983 F.2d 431, 434 (2d

Cir.1993)). No such “exceptional circumstances” are present

here to justify the admission of plaintiff’s 2000 racketeering

conviction over twenty years ago. See, e.g., Dougherty v. Cty.

of Suffolk, No. 13-cv-6493 (AKT), 2018 WL 1902336, at *3

(E.D.N.Y. Apr. 20, 2018) (concluding that plaintiff’s felony

burglary conviction did not present “exceptional circumstances”

warranting its admission); Maize v. Nassau Health Care Corp.,

No. 05—cv-4920 ETB, 2012 WL 139261, at *4 (E.D.N.Y. Jan. 18,

2012) (same). For these reasons, the court grants plaintiff’s

motion in limine to preclude evidence and testimony relating to

plaintiff’s criminal history, prior arrests, and military

discharge. If plaintiff opens the door to this evidence, for

example by denying his criminal conviction or mentioning his

military service, defendants may impeach plaintiff with evidence

of his criminal convictions and dishonorable discharge.

G. Pleadings and Discovery Responses

Plaintiff next moves to preclude defendants from

introducing the pleadings and discovery responses in this case

as potentially prejudicial. (Pl. Mem. at 19 (citing to

defendants’ exhibits W, X, Y, Z, and BB).) Defendants respond

that they do not intend to introduce “these documents in toto,

or for any purpose other than as needed to impeach plaintiff if

necessary.” Defendants further note that certain pleadings and

responses are sworn statements and are considered judicial

admissions against a party and are further admissible as prior

statements of a party. (Def. Opp. at 24-25.)

Although plaintiff’s complaints are not sworn

documents, the court agrees with defendants that plaintiff’s

pleadings are admissible for impeachment purposes and as party

admissions, and are excepted from the definition of hearsay.

See Official Comm. of Unsecured Creditors of Color Tile, Inc. v.

Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003)

(“[A]llegations in the Second Amended Complaint are ‘judicial

admission[s]’ by which [plaintiff] was ‘bound throughout the

course of the proceeding.’” (quoting Bellefonte Re Ins. Co. v.

Argonaut Ins. Co., 757 F.2d 523, 528 (2d Cir. 1985))).

“Plaintiff’s verified discovery responses are also admissions

and thus admissible.” Bermudez v. City of New York, No. 15-cv-

3240 (KAM)(RLM), 2019 WL 136633, at *16 (E.D.N.Y. Jan. 8, 2019).

Accordingly, plaintiff’s motion to preclude his pleadings and

discovery responses is denied and the court will allow

defendants to use such evidence as admissions and for

impeachment purposes.

III. Defendants’ Motions in Limine

A. Defendants’ Disciplinary History and Prior Lawsuits

Defendants move under Rule 404(b) to preclude

plaintiff from inquiring about defendants’ disciplinary

histories and any other civil rights actions brought against

defendants. (Def. Mem. at 8-11.) Defendants did not cite to

any specific disciplinary history or prior lawsuits and instead

made this motion “in an abundance of caution should plaintiff

attempt to elicit such matters.” (Id. at 9 n.1.) In response,

plaintiff represents that he “does not intend to introduce any

such evidence” regarding the prior lawsuits or disciplinary

history. (See Pl. Opp. at 1 n.1.) Based on the foregoing, the

court denies as moot defendants’ motion to preclude any

disciplinary history or prior lawsuits.

B. Specific Damages Award

Next, defendants move to preclude plaintiff from

suggesting a specific dollar amount to the jury with respect to

damages during the opening statement, witness testimony, and

summation. (Def. Mem. at 11-12.) Plaintiff opposes this

motion, requesting that the court permit him to request the jury

award a specific dollar amount “as a matter of trial strategy.”

(Pl. Opp. at 4.)

As plaintiff correctly notes, the determination of

whether to allow a plaintiff to request a specific damages

amount from the jury is within the court’s discretion. See

Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir.

1997). 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), vacated on other grounds, 518 U.S. 1031 (1996), 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, 110 F.3d at 912 (The court may, in its discretion,

“either prohibit counsel from mentioning specific figures or

impose reasonable limitations, including cautionary jury

instructions.”)

In light of the Second Circuit’s guidance, the court

will not permit plaintiff to submit to the jury a specific

dollar amount regarding his non-economic damages, including pain

and suffering, in either his opening statement, witness

testimony, or closing argument. See, e.g., Equal Emp.

Opportunity Comm'n v. United Health Programs of Am., Inc., No.

14-CV-3673 (KAM)(JO), 2017 WL 10088567, at *13 (E.D.N.Y. Sept.

4, 2017) (precluding plaintiffs from suggesting or requesting at

trial a specific dollar amount regarding their noneconomic

damages); Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 558

(E.D.N.Y. 2011) (precluding plaintiff’s counsel from submitting

a specific dollar amount regarding damages for pain and

suffering, but permitting plaintiff’s counsel to submit a dollar

amount regarding other compensable damages if supported with

admissible evidence during case in chief).

Plaintiff will be permitted, however, to submit to the

jury during his closing argument a specific dollar amount

regarding other compensable damages he alleges to have suffered

as a result of the defendants’ actions, so long as any figure

submitted to the jury is supported by the trial evidence

admitted during plaintiff’s case in chief and defendants have an

opportunity to respond if they choose to do so. See Greenburger

v. Roundtree, No. 17-cv-03295 (PGG)(SLC), 2020 WL 6561598, at *3

(S.D.N.Y. Jan. 16, 2020) (“A plaintiff bears the burden of

establishing its entitlement to recovery and thus must

substantiate its claim with evidence to prove the extent of

damages.” (cleaned up)), report and recommendation adopted, 2020

WL 4746460 (S.D.N.Y. Aug. 16, 2020). The court will instruct

the jury that statements by lawyers are not evidence or the law

that they are to follow when they begin their deliberations.

For the foregoing reasons, defendants’ motion in limine to

preclude plaintiff from suggesting a specific dollar amount to

the jury is granted in part and denied in part.

C. Jury Instructions Regarding Punitive Damages

Defendants seek to preclude the court from charging

the jury with an instruction concerning punitive damages. (Def.

Mem. at 12.) Defendants assert that punitive damages are

inappropriate because “there is no evidence of evil intentions,

or reckless or callous indifference” by defendants. (Id.)

Plaintiff argues that a punitive damages award is warranted in

this case and that it should be left to the jury to decide

whether defendant Brander’s use of force warrants punitive

damages. (Pl. Opp. at 5-6.)

“Punitive damages are available in an action under

[section] 1983 when the defendant's conduct is shown to be

motivated by evil motive or intent, or when it involves reckless

or callous indifference to the federally protected rights of

others.’” Haskins v. Jackson, No. 15-cv-2016 (MKB), 2020 WL

6705640, at *17 (E.D.N.Y. Nov. 10, 2020) (quoting Smith v. Wade,

461 U.S. 30, 56 (1983)). A jury may appropriately award

punitive damages where the “character of the tortfeasor’s

conduct . . . is of the sort that calls for deterrence and

punishment over and above that provided by compensatory awards.”

Wade, 461 U.S. at 54. A plaintiff must show a “positive element

of conscious wrongdoing” by the defendant. New Windsor

Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 121 (2d

Cir. 2006) (quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526,

538 (1999)). “Generally, the issue of whether defendants’

conduct is sufficiently serious to warrant punitive damages is a

question best left to the jury.” Lozada v. Weilminster, 92 F.

Supp. 3d 76, 108 (E.D.N.Y. 2015). Nonetheless, “[i]t is a

question of law for the Court, not the jury, to decide whether a

plaintiff has established that punitive damages are available.”

Fairman v. Hurley, 373 F. Supp. 2d 227, 234 (W.D.N.Y. 2005)

(citing 15 Moore’s Federal Practice § 102.106[4]); Frittita v.

Fanny’s Supper Club, No. 98-cv-781S, 2000 WL 35905867, at *9

(W.D.N.Y. Aug. 8, 2000) (“questions on what evidence should be

admitted into or excluded from evidence, what [] evidence is

relevant to the issue of punitive damages, . . . are questions

of law, not questions of fact for the jury”).

District courts in this circuit have “allow[ed] the

jury to decide issues of liability and compensatory damages

first, and then present instructions regarding punitive damages,

if applicable.” Villar v. City of New York, No. 09-cv-7400

(DAB), 2017 WL 4512507, at *6 (S.D.N.Y. Sept. 25, 2017); see

also Hannah v. Wal-Mart Stores, Inc., No. 12-cv-01361 (VAB),

2017 WL 690179, at *4 (D. Conn. Feb. 21, 2017), aff'd sub nom.,

803 F. App’x 417 (2d Cir. 2020). As defendants’ argument

focuses on the “insufficiency of evidence in support of

Plaintiffs’ claim for punitive damages,” this court concludes

that it is inappropriate to make this determination before the

court has the opportunity to evaluate the trial evidence. See

Hannah, 2017 WL 690179, at *4. Thus, the court will reserve the

issue of whether to charge punitive damages until the parties

have rested. Until that point, plaintiff’s counsel is to

refrain from mentioning punitive damages to the jury.

Accordingly, defendants’ motion to preclude the court from

charging the jury with an instruction concerning punitive

damages is denied without prejudice to renewal.

D. Plaintiff’s Medical Records

Defendants also object to plaintiff’s introduction of

medical records that are not authenticated, contain inadmissible

hearsay or irrelevant matter, and are not sufficiently explained

by a competent witness to make them intelligible to the jury.

(Def. Mem. at 13-14.) Plaintiff contends that he may introduce

certified medical records without a custodian or medical witness

pursuant to Rule 803(6). (Pl. Opp. at 6-7.)

Two exceptions under the Federal Rules of Evidence are

relevant when considering the introduction of medical records:

the exception for medical records, as expressed in Rule 803(4);

and the exception for records kept in the normal course of

business, as expressed in Rule 803(6). Generally, medical

records “can be admissible under [Rule] 803(6), provided they

are prepared in the regular course of business, near the time of

occurrence, by a person with knowledge and are properly

authenticated . . . Properly authenticated [s]tatement[s] that .

. . [are] made for—and [are] reasonably pertinent to—medical

diagnosis or treatment; and . . . describe [ ] medical history;

past or present symptoms or sensations; their inception; or

their general cause are also admissible under [Rule] 803(4).”

Norcia v. Dieber's Castle Tavern, Ltd., 980 F. Supp. 2d 492, 501

(S.D.N.Y. 2013) (internal citations and quotation marks

omitted). Rule 803(4) permits introduction of a statement,

otherwise hearsay, that “(A) is made for—and is reasonably

pertinent to—medical diagnosis or treatment; and (B) describes

medical history; past or present symptoms or sensations; their

inception; or their general cause.” Fed. R. Evid. 803(4).

To admit medical records under Rules 803(4) or 803(6),

however, “the introducing party must lay a foundation to

introduce hearsay evidence.” Djangmah v. Falcione, No. 08-cv-

4027 (KPF), 2013 WL 6388364, at *6 (S.D.N.Y. Dec. 5, 2013)

(internal citations and quotation marks omitted). In addition,

“Rule 803(6) explicitly requires that this foundation be laid by

a ‘custodian’ or ‘qualified witness,’ if testimonial, or by a

formal certification by the record’s custodian.” Id.; see also

Perpall v. Pavetek Corp., No. 12-cv-0336 (PKC), 2017 WL 1155764,

at *8 (E.D.N.Y. Mar. 27, 2017) (“Courts in this Circuit have

generally held that medical records are admissible under the

business record exception to the hearsay rule, provided that

they satisfy the requirements of FRE 803(6).”).

With these principles in mind, the court finds that

plaintiff’s medical records will be admissible at trial, if he

lays the proper foundation for such evidence. “As with Rule

803(4), the introducing party must lay a foundation to introduce

hearsay evidence under Rule 803(6); unlike Rule 803(4), however,

Rule 803(6) explicitly requires that this foundation be laid by

a ‘custodian’ or ‘qualified witness,’ if testimonial, or by a

formal certification by the record’s custodian.” Duchnowskl v.

Cty. of Nassau, 416 F. Supp. 3d 179, 182-83 (E.D.N.Y. 2018);

see, e.g., Gissinger v. Yung, Nos. 04-cv-0534, 04-cv-5406, 2007

WL 2228153, at *4 (E.D.N.Y. July 31, 2007) (holding that “[i]f

properly authenticated and created in the regular course of

business contemporaneously with the occurrence by a person with

knowledge, medical records can be admissible as business

records”, and finding submission of affidavit from doctor who

created the medical records was proper authentication) (citing

Hodges v. Keane, 886 F. Supp. 352, 356 (S.D.N.Y. 1995)). Thus,

the court agrees with defendants that plaintiff must properly

lay a foundation under Rule 803(4) or 803(6) to introduce the

plaintiff’s certified medical evidence. At the time plaintiff

introduces such medical evidence, defendants may object on the

ground, inter alia, that the voluminous nature of the records is

lacking proper foundation or likely to confuse or mislead the

jury to such an extent that its probative value is substantially

outweighed, pursuant to Rule 403.3 Fed. R. Evid. 403.

Accordingly, defendants’ motion to preclude plaintiff’s medical

records is denied without prejudice to renewal at trial.

E. References to the City, the City Attorneys, and

Indemnification

Defendants also seek to preclude any evidence or

references relating to the employment or indemnification of the

defendant officers by New York City, including references to

defense counsel as “City Attorneys.” (Def. Mem. at 14-16.)

Specifically, defendants seek to redact any Bates numbers on

exhibits referring to the City, alter the caption of the case to

exclude the City, and also request that any references to the

City’s counsel be referred to at trial as “defense counsel.”

(Id.) Plaintiff represents that he “does not intend to offer

evidence or argument regarding indemnification,” but opposes

defendants request to redact any Bates numbers, alter the

caption, or refer to the City’s counsel as “defense counsel.”

(Pl. Opp. at 7-9.)

3 Defendants contest the admission of plaintiff’s trial exhibit 5

“Helping Hands Therapy Center Records,” as lacking a proper foundation under

Rule 901 and hearsay under Rule 802. (Def. Mem. at 14.) Plaintiff contends

that he has requested a certified set of records and anticipates receiving

such records imminently. (Pl. Opp. at 7.) Accordingly, in light of the

discussion above, the court sustains defendants’ objection but will permit

plaintiff the opportunity to authenticate exhibit 5 at the Final Pretrial

Conference.

Here, the court agrees that evidence regarding

indemnification would be prejudicial against defendants because

such evidence might “encourage a jury to inflate its damages

award because it knows the government -- not the individual

defendants -- is footing the bill.” Othman v. Benson, No. 13-

cv-V4771 (NGG)(SJB), 2019 WL 1118035, at *4 (E.D.N.Y. Mar. 11,

2019) (quoting Williams v. McCarthy, No. 05-cv-10230 (SAS), 2007

WL 3125314, at *7 n.46 (S.D.N.Y. Oct. 25, 2007)); Hernandez v.

Kelly, No. 09-cv-1576 (TLM), 2011 WL 2117611, at *6 (E.D.N.Y.

May 27, 2011) (finding that evidence regarding the City's

potential indemnification of defendant police officers would be

prejudicial against the defendants); Davis v. City of New York,

296 F.R.D. 127, 130 (E.D.N.Y. 2013) (“No reference to defense

counsel as ‘the City’ or suggestion that the City may indemnify

Defendants shall be made.”). Accordingly, the court grants

defendants’ motion in limine and prohibits any references or

evidence relating to the potential indemnification of the

defendant officers, including but not limited to references to

defense counsel as “City” or “Corporation” counsel.

Next, the court must consider whether references to

the City shall be permitted during the trial and on Bates stamps

on relevant exhibits and the case caption. Although the court

recognizes that some district courts have permitted references

to the City and counsel as “City attorneys,” where, as here, the

City remains a defendant, see Adams v. City of New York, 993 F.

Supp. 2d 306, 329 (E.D.N.Y. 2014), Joseph v. Deluna, No. 15-cv-

5602 (KMW), 2018 WL 5095668, at *3 (S.D.N.Y. Oct. 19, 2018), the

court agrees with defendants that any references to the City may

unnecessarily confuse the jury or lead the jury to believe that

the defendant officers may be indemnified by the City. Indeed,

“[w]hile the City has been involved in this litigation, that

fact is irrelevant to the determination of liability and

damages, which should be based solely on the facts and the law.”

Est. of Jaquez v. Flores, No. 10-cv-2881 (KBF), 2016 WL 1060841,

at *2 (S.D.N.Y. Mar. 17, 2016). Accordingly, the court

concludes that any references to defense counsel’s employment by

the City shall be precluded. Moreover, the court agrees that

“[a] reference to ‘Corporation Counsel’ may itself be

misunderstood by jurors as suggesting some association with a

corporation or the City, leading to . . . associations with a

deep pocket,” Flores, 2016 WL 1060841, at *2. Thus, the parties

are not permitted to make any reference to the City on Bates

stamped prefixes on documents admitted at trial, and on all

documents bearing the case caption that will be put before the

jury (e.g., verdict sheet). Further, any reference to

defendants’ counsel as “City Attorneys” or “Corporation Counsel”

is prohibited.

IV. Objections to Trial Exhibits

Within their motions of limine, the parties also

objected to the inclusion of certain trial exhibits at trial.

A. Plaintiff’s Objections

Specifically, plaintiff objects to the inclusion of

defendants’ trial exhibits: A (Facebook photo), B (event

chronology), C (Ms. Cosares’s deposition transcript), D

(plaintiff’s rap sheet), L (plaintiff’s medical record regarding

right elbow), portions of Q (plaintiff’s medical record

regarding right elbow), R (plaintiff’s medical records including

right foot bunionectomy), T (complaint in Scoma v. United

States, 02-cv-2970 (JG) (E.D.N.Y.)), U (Decision and Order in

Scoma v. United States, 02-cv-2970 (JG) (E.D.N.Y.)), W (second

amended complaint in this action), X (first amended complaint in

this action), Y (complaint in this action), Z (plaintiff’s

discovery responses in this action), BB (notice of claim in this

action), CC (complaint in John Scoma v. Man-Dell Food Stores,

Inc., 3250/2013 (Kings Cty. Sup. Ct.)), DD (transcript of

examination in John Scoma v. Man-Dell Food Stores, Inc.,

3250/2013 (Kings Cty. Sup. Ct.)), EE (transcript of examination

in John Scoma v. Man-Dell Food Stores, Inc., 3250/2013 (Kings

Cty. Sup. Ct.)).

Plaintiff also seeks to supplement his exhibit list

with the following exhibits: 6 (Brander’s memo book), 7 (Taser

Report); 8 ESD2 Report for Case No. E6-2015-14713; and 9 ESD2

Report for Case No. E6-2015-14714. (Pl. Mem. at 7 n.1.) As

noted in this court’s Chambers Practices, “[o] nly exhibits

listed in the pretrial order shall be offered in evidence except

when prompt notice has been provided, and good cause and a lack

of prejudice are shown.” (Chambers Practices, Section IV.A.11.)

Plaintiff’s proposed exhibits are not identified on the Joint

Pretrial Order and plaintiff has not offered a sufficient reason

why these belatedly identified exhibits should be permitted at

trial. (See Pl. Mem. at 7 n.1.) Further, defendants offer

several reasons why defendants would be prejudiced by the

inclusion of these exhibits. (See Def. Opp. at 6-8.)

Accordingly, the court precludes plaintiff’s trial exhibits 6,

7, 8, and 9 identified by plaintiff at the present time. At the

Final Pretrial Conference, the plaintiff may renew his motion to

include exhibits 6, 7, 8, and 9 upon a showing of good cause and

lack of prejudice and, similarly, defendants may make any

objections.

For the reasons set forth above, the court makes the

following rulings regarding defendants’ exhibits:

•

Exhibit A (Facebook photo) is relevant and admissible.

•

Exhibits B (event chronology) and C (Ms. Cosares’s

deposition transcript) are relevant and admissible.

•

Exhibit D (plaintiff’s criminal history (“rap”) sheet) is

precluded.

•

The court reserves decision regarding Exhibits L

(plaintiff’s medical record regarding right elbow),

portions of Q (plaintiff’s medical record regarding right

elbow), and R (plaintiff’s medical records including

right foot bunionectomy). To the extent plaintiff’s

damages are limited to his left elbow, the court agrees

that unrelated medical evidence is not relevant or

admissible and will resolve any objections at trial.

• Exhibits T (complaint in Scoma v. United States, 02-cv-

2970 (JG) (E.D.N.Y.)) and U (Decision and Order in Scoma

v. United States, 02-cv-2970 (JG) (E.D.N.Y.)) are

precluded. Exhibits CC (complaint in John Scoma v. Man-

Dell Food Stores, Inc., 3250/2013 (Kings Cty. Sup. Ct.)),

DD (transcript of examination in John Scoma v. Man-Dell

Food Stores, Inc., 3250/2013 (Kings Cty. Sup. Ct.)), EE

(transcript of examination in John Scoma v. Man-Dell Food

Stores, Inc., 3250/2013 (Kings Cty. Sup. Ct.)) are

relevant and admissible. The court will admit evidence

of plaintiff’s left elbow injury from the Key Foods

lawsuit to the extent it is relevant to damages or is

used to impeach plaintiff.

•

Exhibits W (second amended complaint in this action), X

(first amended complaint in this action), Y (original

complaint in this action), Z (plaintiff’s discovery

responses in this action), and BB (notice of claim in

this action) are permitted for impeachment purposes.

B. Defendants’ Objections

Defendants object to the inclusion of plaintiff’s

trial exhibit 5 (Helping Hands Therapy Center Records). As

discussed above, the court sustains the defendants’ objection to

the admission of plaintiff’s exhibit 5 as lacking a proper

foundation under Rule 901 and hearsay under Rule 802. (Def.

Mem. at 14.) Because plaintiff contends that he has requested a

certified set of records and anticipates receiving such records

imminently, however, the court will permit plaintiff the

opportunity to authenticate exhibit 5 at the Final Pretrial

Conference. (Pl. Opp. at 7.) As discussed above, the court

also grants defendants’ motion to preclude plaintiff’s trial

exhibits 6, 7, 8, and 9 as untimely and prejudicial. The court

will permit plaintiff to show good cause and lack of prejudice

at the Final Pretrial Conference why these exhibits should be

admitted.

CONCLUSION

For the foregoing reasons the court grants in part and

denies in part the parties’ motions in limine. In sum, the

court hereby:

A. GRANTS: Plaintiff’s motion to preclude defendants from

introducing evidence of: (1) plaintiff’s prior federal

lawsuit (Scoma v. United States, No. 02-cv-2970 (JG)

(E.D.N.Y. 2002)) regarding his leg injury sustained

while playing basketball and related exhibits; (2)

plaintiff’s workout regimen at the time of his arrest

in September 2015; (3) plaintiff’s medical steroid use

unless explained by medical testimony; and (4)

plaintiff’s criminal history, arrests, and discharge

from the military, unless necessary for impeachment.

The court also GRANTS defendants’ motion to

preclude plaintiff from: (1) requesting a specific

dollar amount regarding non-economic injuries such as

pain and suffering; (2) introducing medical evidence

that is not certified or otherwise lacks a proper

foundation or is not authenticated; (3) referring to

defense counsel’s employment by the City, any

potential indemnification by the City, any reference

to the City on the Bates stamped prefixes on documents

admitted at trial, and on all documents bearing the

case caption that will be put before the jury (e.g.,

verdict sheet).

B. DENIES: Plaintiff’s motion to preclude defendants from

introducing: (1) evidence or testimony regarding the

pre-tasing information to the extent the court has

found such information is relevant and admissible; (2)

testimony from officer witnesses as to the pre-tasing

events and discussions with Brielle Scoma and

Christina Cosares; (3) evidence from plaintiff’s Key

Foods lawsuit as it relates to plaintiff’s left elbow

and emotional injury; (4) plaintiff’s Facebook photo;

(5) use of steroids if properly supported by medical

evidence; and (6) any litigation documents from this

action used for impeachment purposes.

The court also DENIES defendants’ motion to

preclude plaintiff from introducing a specific dollar

amount for compensable damages if supported by trial

evidence.

C. DENIES AS MOOT: Defendants’ motion to preclude any

evidence of the officers’ disciplinary histories or

prior lawsuits.

D. SUSTAINS: Defendants’ objection to plaintiff’s

introduction of plaintiff’s exhibit 5 (Helping Hands

Therapy Center Records). The court will permit

plaintiff to offer proof at the Final Pretrial

Conference regarding the authenticity of plaintiff’s

exhibit 5.

Similarly, the court the also sustains

defendants’ objection as to plaintiff’s trial exhibits

6, 7, 8, and 9 as untimely and prejudicial. The court

will permit plaintiff to show good cause and lack of

prejudice at the Final Pretrial Conference why these

exhibits should be admitted.

E. RESERVES: The court will reserve its decision for

trial to rule on objections regarding: (1) plaintiff’s

proposed charge to the jury regarding punitive

damages; (2) except as provided above, plaintiff’s and

defendants’ medical records; and (3) any evidence or

testimony noted above that is subject to further

review at trial.

Prior to the Final Pretrial Conference, the parties

must confer to attempt to resolve their remaining evidentiary

disputes and shall come prepared to offer proof as to those

disputed exhibits.

The defendants Azeem Chatha, Fernando Caches, Damir

Vukic, Argely Delacruz, Francisco Allende, Spencer Craven, and

Gregory Mannino are dismissed with prejudice pursuant to

plaintiff’s letter dated May 3, 2021 (ECF No. 127) and Federal

Rule of Civil Procedure 41(a)(2).

SO ORDERED.

______/s/ _______

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

Dated: May 4, 2021

Brooklyn, New York