Harris v. City of New York

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THE City oF NEW YORK

HON. SYLVIA O. HINDS-RADIX LAW DEPARTMENT EVAN J. GOTTSTEIN

Corporation Counsel 100 CHURCH STREET Assistant Corporation Counsel

NEW YORK, NY 10007 egottste@law.nyc.gov

Phone: (212) 356-2262

Fax: (212) 356-3509

February 28, 2023

BY ECF

Hon. Lora G. Schofield

United States District Judge

Southern District of New York

40 Foley Square

New York, NY 10007

Re: Brian Harris v. City of New York, et al., 20 Civ. 10864 (LGS)

Your Honor:

I am an Assistant Corporation Counsel in the Office of the Honorable Sylvia O. Hinds-

Radix, Corporation Counsel of the City of New York, and the attorney for defendants in the above-

referenced matter. Defendants write to respectfully request that the Court bifurcate liability and

damages for the purposes of both discovery and trial in this matter.

By way of background, plaintiff alleges that defendants subjected him to excessive force

on September 2, 2020, when they resorted to tasing him one time after he refused several

commands to step away from his vehicle, which was an active crime scene concerning a recent

shooting, resisted officers’ attempt to handcuff him without force, and ignored a warning that he

would be tased if he did not step away. The parties completed fact discovery in 2021, and the

Court stayed expert discovery, including depositions of treating physicians during the pendency

of defendants’ motion for summary judgment. On February 16, 2023, the Court entered an

Opinion and Order granting summary judgment in favor of all individual defendants but denying

summary judgment on plaintiff's state law respondeat superior claim against the City.

Specifically, the Court found that defendants were entitled to qualified immunity because the force

used was not clearly established as unconstitutional, but there was at least a triable issue of fact as

to the objective reasonableness of the force used. At this stage in the litigation, bifurcation would

be the most prudent course.

Courts have broad discretion under Rule 42(b) of the Federal Rules of Civil Procedure to

bifurcate separate issues or claims “[f]or convenience, to avoid prejudice, or to expedite and

economize....” Fed. R. Civ. P. 42(b). See also Ricciuti v. New York City Transit Auth., 796 F.

Supp. 84, 86 (2d Cir. 1999). “[B]ifurcation may therefore be appropriate where the evidence

offered on two different issues will be wholly distinct . .. where litigation of one issue may obviate

the need to try another issue . . .,” see Vichare v. AMBAC, Inc., 106 F.3d 457, 466 (2d Cir. 1996),

or “where one party will be prejudiced by evidence presented against another.” Amato v. City of

Saratoga Springs, 170 F.3d 311, 316 (2d Cir. 1999). To prevail on a bifurcation motion, a party

need only establish the presence of one of these conditions. Ricciuti, 796 F. Supp. at 86; Amato v.

City of Saratoga Springs, 972 F. Supp. 120, 124 (N.D.N.Y. 1997) (“the court could order

bifurcation upon a showing of merely one of these factors”), aff’d, 170 F.3d 311 (2d Cir. 1999).

The decision to bifurcate is “firmly within the discretion of the trial court.” Katsaros v. Cody, 744

F.2d 270, 278 (2d Cir. 1984). Bifurcation is appropriate where the issues to be separated are

distinct, involve different types of proof, and where separation will not engender duplication of

testimony and evidence. Id.1

Considerations of efficiency and convenience weigh strongly in favor of bifurcating

liability from damages. This is a highly straightforward case; the jury need only determine the

issue of whether it was objectively reasonable for defendant Baltzer to deploy a taser one time at

plaintiff, who was significantly larger than the defendants, disregarded several verbal commands

to move away from an active crime scene in a shooting investigation, physically resisted an

officer’s attempt to place him in handcuffs, and ignored a warning that he would be tased if he did

not comply. Defendants estimate that trial on this question would last no more than two to three

days. Trying damages, on the other hand, will require significant time and money given that

plaintiff alleges that he was required to have wrists surgery as a result of his injuries from being

tased a single time. Plaintiff has also listed at least four treating professionals in his Rule 26

disclosures and discovery responses, as well as “[a]ny other treating professionals identified in

Plaintiff’s medical records.” Although plaintiff represents that he does not intend to separately

retain any experts pursuant to Rule 26(a)(2), he has not indicated how many “treating

professionals” he intends to call at trial. Similarly, plaintiff testified in his deposition, in sum and

substance, that he did not feel any pain or have any problems with his wrist immediately after he

was tased or in the days and weeks that followed, but now he claims that his wrist was so severely

injured that he required surgery months after the incident, so defendants may need to retain and

call a rebuttal expert on the issue of causation. On top of this, plaintiff also intends to pursue

economic damages for lost wages based on not working overtime after his surgery, and he has

disclosed at least one witness from his employer whom he may call to testify on this issue. Not

only would the damages issue require additional witnesses, but it would also require a substantial

mass of documentary evidence to be introduced and explained at trial, including multiple pay stubs

and medical records, of which there have been over 150 pages produced in discovery.

The issues of liability and damages are easily separable. In a case alleging assault and

battery (via respondeat superior) based on the use of a taser, the jury need only determine whether

the force was objectively reasonable based on the facts and circumstances confronting the

officer(s) at the time they decided to use the force against plaintiff. See Graham v. Connor, 490

U.S. 386, 397 (1989). The extent of plaintiff’s alleged injuries after the force was used is not

relevant to the question of liability. Additionally, bifurcation will not “engender duplication of

testimony and evidence,” Katsaros, 744 F.2d at 278, because plaintiff himself is conceivably the

1 Alternatively, the Court has authority under Fed. R. Civ. P. 16(c)(2)(F), (L), (M), and (P) to stage

discovery and sequence the order of trial to facilitate the just, speedy, and inexpensive disposition

of the action.

only fact witness who would also have relevant testimony about damages. None of the defendants

have knowledge of plaintiff's alleged damages, and none of plaintiffs treating physicians or

economic damages witnesses would have relevant testimony on the issue of liability. Further,

presenting evidence of plaintiff's wrist surgery and missed time from work might well prejudice

defendants on the liability case. See Fed. R. Evid. 403; Amato, 170 F.3d at 316. Lastly, any

remaining discovery, including expert disclosures and depositions, can be avoided altogether if the

liability issue is determined in advance of damages. See, e.g., Lopez v. City of New York, No. 17-

CV-0181 (LAP) (S.D.N.Y.), ECF Nos. 19, 126 (bifurcating liability and damages for purposes of

discovery and trial where only claims for trial arose under state law for assault and battery).

The most prudent, efficient, and expeditious course of action would be to bifurcate liability

and damages for purposes of both discovery and trial. Thus, defendants respectfully move for

bifurcation of liability and damages under Rules 42(b) and 16(c)(2) and request a final case

management conference pursuant to Section IV.B.1 of Your Honor’s Individual Rules and

Procedures for Civil Cases.

Defendants thank the Court for its consideration of this application.

Respectfully submitted,

Evan G. Gottetetn /s/

Evan J. Gottstein

Assistant Corporation Counsel

ce: Doug Lieb, Esq. (by ECF)

Alanna Kaufman, Esq. (by ECF)

Attorneys for Plaintiff

Application DENIED. The parties agree this is a straightforward case. For the reasons stated in

Plaintiff's letter of March 1, 2023, evidence as to damages will not substantially affect the scope of

discovery and trial. Bifurcating trial into liability and damages phases would not serve

"convenience, ... avoid prejudice, or ... expedite and economize" proceedings. Fed. R. Civ. P. 42(b).

The parties shall complete expert discovery by April 14, 2023. No later than April 21, 2023, the

parties shall file a joint letter regarding settlement. Such a letter shall include a statement of

whether the parties request a referral for settlement discussions before Magistrate Judge

Lehrburger or through the SDNY Mediation program. A case management conference will be held

on April 26, 2023, at 4:10 P.M. Such conference will be telephonic and will take place on the

following line: 888-363-4749, access code: 558-3333. So Ordered.

The Clerk of Court is respectfully directed to calendar a case management conference for April 26,

2023, at 4:10 P.M. and to close the motion at Dkt. 78.

Dated: March 2, 2023

New York, New York

3 LORNA G. SCHOFIEL

UNITED STATES DISTRICT JUDGE