Butler v. Suffolk County

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MACK BUTLER, DESHAUN SIMS,

CLYDE LOFTON, PAUL ALVER,

KEVIN KING, and RICKEY LYNCH,

on behalf of themselves and all

others similarly situated,

Plaintiffs, MEMORANDUM & ORDER

11-CV-2602(JS)(ST)

-against–

SUFFOLK COUNTY,

Defendant.

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APPEARANCES

For Plaintiffs: Daniel H.R. LaGuardia, Esq.

John Nathanson, Esq.

Elizabeth J. Stewart, Esq.

Benjamin Klebanoff, Esq.

ALLEN OVERY SHEARMAN & STERLING US LLP

599 Lexington Avenue

New York, New York 10022

Christopher T. Dunn, Esq.

Amy Belsher, Esq.

Gabriella Larios, Esq.

Veronica R. Salama, Esq.

NEW YORK CIVIL LIBERTIES UNION

125 Broad Street

New York, New York 10004

For Defendant: E. Christopher Murray, Esq.

Michelle A. Klein, Esq.

Elizabeth S. Sy, Esq.

Caitlyn M. Gibbons, Esq.

RIVKIN RADLER LLP

926 RXR Plaza

Uniondale, New York 11556

SEYBERT, District Judge:

The instant class action case is premised upon

Plaintiffs’ complaints related to alleged conditions-of-

confinement to which they had and have been subjected while

pretrial detainees and/or inmates of the Suffolk County

Correctional Facilities (hereafter, the “Action”). The Court

assumes the parties’ familiarity with the factual background

giving rise to this Action. See generally Butler v. Suffolk

County, No. 11-CV-2602, 2023 WL 5096218 (E.D.N.Y. Aug. 9, 2023)

(ECF No. 527) (hereafter, the “Summary Judgment Order”); Butler v.

Suffolk County, No. 11-CV-2602, 2023 WL 5095432 (E.D.N.Y. Aug. 9,

2023) (ECF No. 528) (hereafter, the “Substitution Order”); Butler

v. Suffolk County, 289 F.R.D. 80 (E.D.N.Y. 2013) (ECF No. 375)

(hereafter, the “Certification Order”) (granting class

certification; establishing an Injunctive Class (with subclasses)

and a Damages Class (with subclasses)).1 Accordingly, in this

Memorandum & Order, the Court proceeds to rule upon various Motions

In Limine brought by Plaintiffs, to wit:

(1) the Motion In Limine Regarding Plaintiffs’

Witnesses’ Personal Histories and Presentation In Court

1 Familiarity with terms of art defined in the Summary Judgment

Order, Substitution Order, and Certification Order is assumed.

Herein, the Court may use said terms of art. For convenience, the

Court reiterates it will refer to pretrial detainees and post-

conviction inmates simply as “inmates”. (See, e.g., Summary

Judgment Order, 2023 WL 5096218, at *1 n.2.)

(hereafter, the “PH-MIL”) (see ECF No. 615; see also PH-MIL Support

Memo, ECF No. 616; PH-MIL Opp’n, ECF No. 632; PH-MIL Reply, ECF

No. 641);

(2) the Motion In Limine To Preclude James Balsamo’s

Testimony (hereafter, the “Balsamo MIL”) (see ECF No. 619; see

also Balsamo MIL Support Memo, ECF No. 620; Klebanoff Omnibus

Decl., ECF No. 625; Balsamo MIL Opp’n, ECF No. 633; Balsamo MIL

Reply, ECF No. 642); and

(3) the Motion In Limine on Sampling Evidence

(hereafter, the SE-MIL”) (see ECF No. 621; see also SE-MIL Support

Memo, ECF No. 622; SE-MIL Opp’n, ECF No. 634; SE-MIL Reply, ECF

No. 644).

DISCUSSION

I. In Limine Motions, Generally

As thoroughly explained by Honorable Katherine B.

Forrest of the Southern District of New York:

In limine motions can play an especially

important and useful role in a jury trial,

allowing the parties to seek rulings in

advance as to issues that otherwise may

require extensive side bars or argument that

can interrupt the proceedings. See Palmieri

v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996);

accord Highland Capital Mgmt., L.P. v.

Schneider, 551 F. Supp. 2d 173, 176 (S.D.N.Y.

2008). Well-grounded in limine motions may

also require the parties to sharpen their

focus on the real issues in a case and

streamline their presentations. See In re

Methyl Tertiary Butyl Ether Prods. Liab.

Litig., 517 F. Supp. 2d 662, 666–67 (S.D.N.Y.

2007). . . .

The Court’s role with regard to such pre-

trial rulings is grounded in [R]ule 104 of the

Federal Rules of Evidence. That rule

“requires that a court make a preliminary

determination of the admissibility of all

evidence.” SEC v. Tourre, 950 F.Supp.2d 666,

675 (S.D.N.Y. 2013). In the context of a pre-

trial in limine ruling, challenged evidence

“should only be precluded when it is ‘clearly

inadmissible on all possible grounds.’” Id.

(quoting Commerce Funding Corp. v.

Comprehensive Habilitation Servs., Inc., No.

01 Civ. 3796, 2005 WL 1026515, at *3 (S.D.N.Y.

May 2, 2005)).

In limine rulings are “necessarily

preliminary—and [ ] subject to change when the

case unfolds.” Id. at 676 (citing Highland

Capital Mgmt., 551 F. Supp. 2d at 176;

Commerce Funding, 2005 WL 1026515, at *4). “A

foundation may be laid contrary to

expectations; relevance may appear where

previously considered unlikely; the balancing

of factors under Rule 403 may change as events

in the courtroom drama unfold. The Court

recognizes that trials often contain

unexpected moments and developments, and[,

thus,] the parties should bear those

developments in mind when determining whether

to drop or re-raise an issue decided by this

order.” Id.

Luitpold Pharm., Inc. v. Ed. Geistlich Sohne A.G. Fur Chemische

Industrie, No. 11-CV-0681, 2015 WL 5459662, at *1 (S.D.N.Y. Sept.

16, 2015); see also Williams v. Geraci, No. 14-CV-5742, 2020 WL

5848738, at *5 (E.D.N.Y. Sept. 30, 2020) (discussing MIL standard).

II. The PH-MIL

A. Plaintiffs’ Position

Plaintiffs are seeking the preemptive exclusion of the

criminal histories of the 17 Plaintiff witnesses, identified in

the Parties’ Proposed Joint Pretrial Order (ECF No. 667, Pls.’

List of Witnesses, ¶(d); see also, e.g., ECF No. 604, Pls.’ List

of Witnesses ¶(d)), who were or are inmates in the Facilities

(hereafter, the “Subject Witnesses”). They assert the Subject

Witnesses’ criminal histories are irrelevant to their

constitutional claims and, therefore, pursuant to FRE 401 and FRE

402, should be excluded. (See PH-MIL Support Memo at 3-6.) They

contend the atypical nature of this Action, “distinct from, for

example, a Section 1983 action against police officers for

excessive force during an arrest”, guides the Court’s discretion

to grant this in limine request. (See id. at 5.) Indeed, it is

sufficient for the Court to “provide an instruction to the jury

noting that at the time the incidents which gave rise to this

lawsuit took place, the [Subject Witnesses were] incarcerated at

the Suffolk County Correctional Center—a matter with which [the

jury] need not concern [itself].” (Id. (quoting Dougherty v.

County of Suffolk, No. 13-CV-6493, 2018 WL 1902336, at *5 (E.D.N.Y.

Apr. 20, 2018)).) Hence, Plaintiffs request the Court “reject any

attempt by the County to introduce evidence that is irrelevant to

the nature of Plaintiffs’ constitutional claims.” (Id. (citation

omitted).)

Further, Plaintiffs prophylactically request the

exclusion of the Subject Witnesses’ criminal histories as

impeachment evidence. (See id. at 6-17.) Relying upon FRE 403,

they generally argue that, in this purported violations of

conditions-of-confinement Action, it is imperative to ensure “the

jury’s consideration of [the Subject Witnesses’] testimonial

evidence is untainted by irrelevant, unduly prejudicial, and

cumulative evidence of their criminal convictions, unrelated

incarceration histories and conviction status during their SCCF

incarceration(s).” (Id. at 6; see also id. at 6-7.) Plaintiffs

further contend that, pursuant to FRE 609, the Subject Witnesses’

criminal convictions should be precluded for impeachment purpose,

since such evidence should be admitted only in narrow

circumstances. (See id. at 8.) As to felony convictions less

than ten years old, Plaintiffs assert this would affect ten of the

17 Subject Witnesses (see id. at 10-13), whom they do not identify;

nor do they indicate the types of felony convictions at issue.

(See id.) As to felony convictions more than ten years old,

Plaintiffs contend at least 14 of the Subject Witnesses have such

convictions; again, those Witnesses and their respective

convictions, have not been identified. (See id. at 13.)

According to Plaintiffs, since “the County has not

provided notice of its intent to rely on such evidence and because

none of these convictions qualify as the sort of ‘rare’ exceptions

required by Rule 609(b), they must be excluded.” (Id. at 14.)

Further, pursuant to FRE 609(d), Plaintiffs seek the preclusion of

any juvenile adjudications of the Subject Witnesses. (See id. at

15.) They also request that, per FRE 609(a)(1), the subject

Witnesses’ misdemeanors be excluded from impeachment evidence,

which, if more than ten years old, would be inadmissible under FRE

609(b). (See id.) To the extent the Court determines any of the

Subject Witnesses’ felony convictions are admissible for

impeachment purposes, Plaintiffs request such “admission be

limited to the fact of a prior felony conviction—without revealing

the specific offense, sentence, or details—to minimize inherent

prejudice.” (Id. at 16.) Finally, Plaintiffs maintain “narrowing

the County’s impeachment of the [Subject Witnesses] based on their

prior convictions would promote judicial efficiency by minimizing

the risk of wasting time or needlessly presenting ‘cumulative

evidence’ in this multi-day trial.” (Id. at 17.)

Plaintiffs further request the County be precluded from

introducing the Subject Witnesses’ prison disciplinary histories,

arguing such history “is irrelevant to their testimony about

conditions of confinement as SCCF”, thereby making it inadmissible

pursuant to FRE 401 and FRE 402. (Id. at 17.) Moreover, even if

such evidence could be construed as relevant, it would also be

excludable under FRE 404(d) as inadmissible propensity evidence.

(See id. at 18.) Plaintiffs claim the County’s apparent attempt

to introduce prison disciplinary histories is “an improper effort

to suggest Plaintiffs disregard ‘law and order,’ potentially

leading the jury to question the credibility of their accounts or

the propriety of making findings in their favor.” (Id.)

Plaintiffs aver, because the Subject Witnesses’ prison

disciplinary histories have no relevance to the conditions-of-

confinement of which Plaintiffs complain, such evidence has no

relevance other than to suggest propensity, making it excludable

pursuant to FRE 404(b). (See id. at 18-19 (case citations

omitted).)

Additionally, Plaintiffs request the Subject Witnesses’

substance abuse histories be excluded pursuant to: FRE 401 and FRE

402, since it is irrelevant to the claims at issue; FRE 403, since

it is unduly prejudicial; FRE 404(b), since it is improper

character evidence; and, FRE 608(b), since such history does not

go the Subject Witnesses’ “character for truthfulness”. (See id.

at 19-20.) Similarly, Plaintiffs ask that the Subject Witnesses’

prior arrests and other ‘bad acts’ also be excluded since it would

violate FREs 401-404(b) as, other than propensity, its

introduction has not legitimate purpose and would be prejudicial,

and as it “is also impermissible as impeachment under Rule 608

because it is not probative of [the Subject Witnesses’] ‘character

for truthfulness’.” (Id. at 21 (quoting FRE 608(b)).)

B. The County’s Position

In opposition, the County asks the Court to “find that

certain portions of Plaintiffs’ [PH-MIL] motion are too sweeping

in scope and reserve judgment on the admissibility of evidence not

expressly raised . . . with the necessary specificity until trial

when admission of the particular piece of evidence is at issue.”

(PH-MIL Opp’n at 1; see also, e.g., id. at 4 n.3, and at 6, 7, and

8.) As to felony convictions less than ten years old, the County

highlights Plaintiffs concession that there are at least ten of

the Subject Witnesses with such convictions, some of which are for

crimes of “stealth”. (See id. at 2, 3.) Further, according to

the County, “all felony convictions for drug-sales, robbery, grand

larceny, and crimes of ‘stealth’ that are less than ten years old

should be deemed admissible for impeachment purposes.” (Id. at

4.) It underscores that the credibility consideration in deciding

the admissibility of these convictions is particularly important

in this Action and weighs in favor of admissibility. (See id.

(discussing the four relevant FRE 403 factors for determining

admissibility pursuant to FRE 609(a)); see also id. at 2; see also

id. at 5 (asserting, because the Subject Witnesses’ credibility is

“a central factor in this case”, “the fourth factor weighs in favor

of admissibility”).) In that vein, the County further asserts the

Subject Witnesses “are the only ones who can testify as to the

specific conditions they personally experienced.” (Id. at 5

(emphasis in original.) Therefore, because “the jury will have to

determine who is more credible”, i.e., the Subject Witnesses or

the County, the Subject Witnesses’ felony convictions should be

admitted for impeachment purposes (id.) and, “at a minimum”, the

Court should “allow the introduction of the statutory names,

sentences imposed, and the date of the conviction, which will

reduce any risk of unfair prejudice.” (Id. at 6.)

As to misdemeanors involving dishonest acts or false

statements, regardless of their age, the County reserves the right

to seek their introduction and requests “the Court reserve judgment

on this portion of Plaintiffs’ [PH-MIL] motion until trial.” (Id.

at 7.) As to the Subject Witnesses’ prison disciplinary histories,

the County asserts such histories are “admissible to demonstrate

animus towards the SCCF and/or employees of the SCCF.” (Id.)

However, since “Plaintiffs have not stated the details of the

specific prison disciplinary histories they seek to preclude,” the

County reserves its right to use such histories, invoking FRE

404(b) and FRE 608. (See id.) Similarly and finally, as to the

Subject Witnesses’ prior arrests or other ‘bad acts”, the County

maintains a sweeping argument for preclusion is unavailing since

certain ‘bad acts’ may be probative of a Witness’s character for

truthfulness. (See id. at 8.) By way of example, the County

provides an excerpt from the deposition of Named Plaintiff Mack

Butler, who testified that, in the 1990s, he provided police with

a false name when he was arrested after absconding from work

release. (See id. at 9 (quoting Butler Dep. Tr., Ex. A, ECF No.

631-1, attached to Murray Decl., ECF No. 631).) Accordingly, the

County contends this history should be admissible for impeachment

purposes.

C. The Court’s Ruling2

The Court makes three initial observations. First, this

MIL is directed towards the Subject Witnesses only. Second, a

fair reading of Plaintiffs’ PH-MIL Support Memo and the County’s

Opposition thereto, shows the overarching issue at hand is evidence

that may be presented for impeachment purposes; indeed, in the

absence of the County indicating otherwise, the Court deems the

2 In their PH-MIL, Plaintiffs also request the currently

incarcerated Subject Witnesses be: (1) permitted to appear in

“appropriate courtroom attire including regular pants and a belt”;

(2) “free from handcuffs, shackles, or other restraints while in

the presence of the jury”; and (3) be escorted in and out of the

courtroom by corrections officers “outside of the jury’s

presence”. (PH-MI Support Memo at 22-23.) At the January 24,

2025 Pretrial Conference, the Court stated the currently

incarcerated Subject Witnesses (therein, designated the “Housed

Witnesses”) will be permitted to appear in street clothes for the

trial, but will be remain in leg shackles (which will not be

visible to the jury while said Witnesses are seated in the galley),

and will be moved into and out of the courtroom, as well as to and

from the witness stand, outside of the presence of the jury. For

clarity: Unless safety concerns warranting otherwise are raised

by either the assigned Deputy U.S. Marshals or the assigned N.Y.S.

correctional officers, while they are in the courtroom, the

incarcerated Subject Witnesses are permitted to wear belts.

County’s proffer of evidence in the identified categories of

personal histories to be for rebuttal purposes only. Third, the

Court agrees with Plaintiffs that, to the extent the County did

not address certain categories of past histories of the Subject

Witnesses and which, therefore, Plaintiffs argue should be

excluded, the County has effectively conceded those categories of

past history are excludable, thereby narrowing the issues before

this Court. The Court concurs, deeming such silence as

acquiescence by the County. Given those observations and findings,

the Court proceeds with its rulings.

1. Juvenile Adjudications

In the absence of any objection and pursuant to FRE

609(d), the juvenile adjudications of the Subject Witnesses are

inadmissible impeachment evidence.

2. Histories of Substance Abuse

In the absence of any objection and pursuant to FRE 402

and FRE 403, the histories of substance abuse of the Subject

Witnesses, as well as any participation in related programs, are

excluded as impeachment evidence.

3. Prison Disciplinary Histories

Having carefully reviewed the record and considered the

Parties’ arguments, the Court agrees with Plaintiffs that as to

the Subject Witnesses’ prison disciplinary histories, the “County

has failed to make appropriate countervailing arguments regarding

admissibility”. (PH-MIL Reply at 8.) Indeed, any purported

“animus” the Subject Witnesses might have is irrelevant to the

issue at hand, i.e., whether Plaintiffs were subjected to

unconstitutional conditions-of-confinement and whether the County

was deliberately indifferent to those conditions. See FRE 402.

Nor has the County addressed how the probative value of such

evidence would outweigh the risk of unfair prejudice. See FRE

403. Similarly, the County has not articulated how such histories

go the Subject Witnesses’ character for truthfulness. See FRE

608(b). Rather, on the record before it, the Court finds the

Subject Witnesses’ prison disciplinary histories should be

excluded since the County has failed to identify a proper purpose

for their admissions. See, e.g., Dougherty, 2018 WL 1902336, at

*6-7 (excluding plaintiff’s prior bad acts evidence where Suffolk

County failed to identify a proper purpose for its admission and

attempted to “improperly shift” the burden to plaintiff).

4. Misdemeanors

In the absence of any objection to the use of

misdemeanors more than ten years old, such misdemeanors of the

Subject Witnesses are excluded for all purposes. See FRE 609(b).

However, the County suggests it may seek to introduce for

impeachment purposes misdemeanors which are less than ten years

old and which involve dishonest acts or false statements (see PH-

MIL Opp’n at 7). Pursuant to FRE 609(a)(2), since the length of

punishment is irrelevant, if the County can establish the proffered

misdemeanor establishes the elements of a dishonest act or a false

statement, it may proffer such misdemeanors on rebuttal. Whether

the County satisfactorily makes that showing will be determined at

trial as is necessary.

5. Felony Convictions

First, in the absence of any objection (see, e.g., PH-

MIL Reply, at 2; compare PH-MIL Opp’n, in toto), any felony

convictions of the Subject Witnesses more than ten years old are

excluded from admission at trial for any purpose, including

rebuttals. See, e.g., FRE 609(b). Second, as to the felony

convictions less than ten years old, as observed, supra, the County

intends to use such evidence for impeachment purposes only. Hence,

for clarity, the Court explicitly holds the County to that implicit

position.

It cannot be disputed that the introduction of certain

felony convictions less than ten years old are subject to FRE 403.

See FRE 609(a)(1)(A); see also Geraci, 2020 WL 5848738, at *6

(listing the factors courts consider when determining the

admissibility of prior felony convictions, i.e., “(1) the

impeachment value of the crime, (2) its remoteness, (3) similarity

to the current conduct, and (4) the importance of the credibility

of the witness”). Unfortunately, neither side has indicated the

felony convictions at issue. Thus, the Court is asked to rule in

a vacuum. It declines to do so. This is especially so given the

Second Circuit’s instruction that “the gradations among Rule

609(a)(1) crimes, in terms of their bearing on truthfulness, . . .

lie at the heart of the Rule 403 analysis that district courts

must undertake when determining whether to admit for impeachment

purposes evidence of a witness’s convictions . . . under Rule

609(a)(1).” United States v. Estrada, 430 F.3d 606, 619 (2d Cir.

2005); see also id. at 620 (elucidating, further, that the FRE 403

analysis prescribed by FRE 609(a)(1)(A) “requires assessment of

the probative value of a particular conviction on a witness’s

propensity for truthfulness in light of the risk of prejudice,

confusion, and delay”). Similarly, since it has not been apprised

of those convictions the County may seek to use for rebuttal, the

Court is stymied in determining whether a potentially proffered

felony conviction is one that must be admitted pursuant to FRE

609(a)(2), “as being per se probative of credibility”, assuming

the County can establish the requisite elements of a dishonest act

or false statement. Estrada, 430 F.3d at 615. Hence, the Court

reserves decision as to the use of the Subject Witnesses’ felony

convictions (that are not more than ten years old), if any, on

rebuttal.

6. Other Issues

Plaintiffs also contend the County did not oppose other

aspects of their PH-MIL Motion, i.e., excluding the Subject

Witnesses’ conviction status while incarcerated at SCCF and beyond

SCCF. (See Reply at 2). Indeed, the Court is perplexed how such

information, if solicited, would be relevant to the issues at hand.

See FRE 401, FRE 402. It would certainly be prejudicial,

especially as the jury will already have been informed of the

nature of this Action: a prisons’ conditions-of-confinement class

action case. See FRE 403. In addition, such evidence could be

confusing and could waste time, which are other reasons to exclude

it. See id. Accordingly, such evidence is excluded.

Relatedly, because the Subject Witnesses’ incarceration

jackets are external evidence of their criminal convictions,

incarceration histories, and conviction status while at SCCF, “and

the County has not made any argument as to their relevance or

admissibility for its case or for impeachment,” Plaintiffs also

seek their exclusion. (See id. at 2 n.4 (citing Bermudez v. City

of N.Y., No. 15-CV-3240, 2019 WL 136633, at *19 (E.D.N.Y. Jan. 8,

2019)).) Given the absence of objection, and in light of FRE

608(b), the incarceration jackets are precluded, subject to the

“door being opened” to their admission, which would necessitate an

FRE 403 inquiry before determining whether the incarcerations

jackets would then be admissible. See, e.g., Bermudez, 2019 WL

136633, at *19.

As to prior bad acts, as the County asserts, Plaintiffs

are seeking “to obtain blanket preclusion for all ‘bad acts’ as

impeachment evidence”. (PH-MIL Opp’n at 8.) In the absence of

any specific examples of prior bad acts by specific Subject

Witnesses, the County “expressly reserves the right to raise any

prior arrests and ‘bad acts’ as impeachment evidence under Rule

608 that are not specifically raised by Plaintiffs.” (Id.) Thus,

it requests the Court reserve judgment on this portion of the PH-

MIL Motion. (See id.) The Court concurs; notwithstanding the

general rule that prior bad acts are inadmissible, see FRE 404(b),

without specific information as to individual Subject Witnesses,

the Court is unable to ascertain whether any relevant exceptions

apply. The County exemplifies its understanding of this concept,

and the instances when the use of prior bad acts may be

appropriate, with its proffer of Named Plaintiff Butler’s

deposition testimony regarding his use of an alias. (See PH-MIL

Opp’n at 8-9 (arguing the use of an alias goes to the issues of

credibility and truthfulness).) Hence, this branch of the PH-MIL

Motion is denied; when, and if, the County seeks to use such

evidence on rebuttal, the Court will rule whether it goes to the

crucial issues of credibility and truthfulness and, therefore,

whether its use is permissible.

***

To the extent the Court has not explicitly ruled on a

portion of Plaintiffs’ PH-MIL Motion, it is denied without

prejudice to renew at trial, if warranted.

III. The Balsamo MIL

A. Plaintiffs’ Position

Plaintiffs seek to preclude the County from offering the

opinions and testimony of James Balsamo (“Balsamo”) pursuant to

Federal Rules of Evidence (“FRE”) 402 and 702 and pursuant to

Federal Rule of Civil Procedure (“FRCP”) 37(c), as a sanction.

(See Balsamo MIL.) Generally, Plaintiffs argue: (1) pursuant to

FRE 402, Balsamo’s critiques of the opinions of Plaintiff’s prior

expert, Mr. Pepper, are irrelevant and, therefore, should be

excluded; (2) because Balsamo’s 2017 and 2024 opinions are not

based on any accepted methodology, they are unreliable, thereby

warranting their preclusion pursuant to FRE 702; and (3) given the

County’s malfeasance in failing to disclose Balsamo or his 2018

Inspection and 2019 Report, pursuant to FRCP 37(c), the County

should be precluded from offering Balsamo at all. (Balsamo MIL

Support Memo at 8; see also id. at 17-18 (re: irrelevance); id. at

11-17 (re: unreliable methodology); and, id. at 18-24 (re:

sanctionable non-disclosure).)

B. The County’s Position

In opposition, the County asserts it “does not intend to

have Mr. Balsamo testify about anything not included in his 2024

report.” (Balsamo MIL Opp’n at 1; see also id. at 3 (“The County

does not intend to have [Balsamo] testify during direct examination

about the contents of his 2017 report or his 2019 draft report or

his observations from his 2018 visits to the SCCF.”); id. at 7

(“Mr. Balsamo will only testify about his 2017 report, 2019 draft

report, and observations from his 2018 inspection of the SCCF if

plaintiffs open the door to those topics on cross-examination”).)

Yet, tellingly, and as aptly stated by Plaintiffs:

[t]he County does not deny or explain its

failure to disclose Mr. Balsamo’s 2018

Inspection at the same time that it was

telling this Court the scope of Ms.

Skipworth’s inspection should be more limited.

The County does not deny or even attempt to

justify the fact that it failed to disclose

Mr. Balsamo’s 2018 Inspection and 2019 Report

even while the Court was considering its

summary judgment submission. And the County

does not dispute that the 2019 Report was

inconsistent with its summary judgment

submission and could have changed the outcome

of that motion.

(Balsamo MIL Reply at 1.) Moreover, the County’s current position

regarding Balsamo’s 2019 Report is no longer consistent with its

trial exhibit list, which included the 2019 Report (see ECF No.

667-4 at p.24 (listing Ex. WWWWWW, the “Balsamo 2019 Report”)), or

Balsamo’s assertion, made during his September 2024 deposition,

that he planned to testify at trial about his 2019 Report. (See

Balsamo MIL Reply at 1.)

C. The Court’s Ruling

1. Plaintiffs’ FRE 402 Request

Regarding the Pepper Report

First, given the County’s concession regarding the

proposed scope of Balsamo’s testimony, Plaintiffs’ initial request

to preclude as irrelevant Balsamo’s 2017 opinions regarding the

Pepper Report, see FRE 402, is GRANTED. For clarity: This ruling

extends to Balsamo’s 2017 Report, Exhibit VVVVVV, as well. (See

ECF No. 667-4 at p.24 (listing Ex. VVVVVV, the “Balsamo 2017

Report”).)

2. Plaintiffs’ Sanction-of-Preclusion Request

The Court addresses, out-of-sequence, Plaintiffs’ third

request, i.e., implementing the sanction of precluding Balsamo

from testifying because of the County’s initial non-disclosure

and, then, late disclosure of the 2018 Inspection and 2019 report.

Plaintiffs raise serious issues regarding the County’s failure to

timely disclose Balsamo’s 2018 Inspection and 2019 Report (see

Balsamo MIL Support Memo at 18-24; Balsamo MIL Reply at 2-5), which

the County has woefully failed to address in any meaningful way in

its Balsamo MIL Opposition. (See Balsamo MIL Opp’n, in toto.)

Rather, the Court finds the County’s paltry response to this issue

is glib and disingenuous. (See, e.g., Balsamo MIL Opp’n at 7 and

note 3.) Again, the Court agrees with Plaintiffs that “[t]he

County does not deny that its disclosure failures impacted multiple

rulings by this Court, including the scope of Plaintiffs’ expert’s

inspections and, more critically, the Court’s ruling on the motions

for summary judgment.” (Balsamo MIL Reply at 2.) Rather, the

County’s relative silence regarding the subject disclosure

failures is deafening.

To the extent the County tries to explain away its

nondisclosure of the 2019 Report as said Report being “merely a

draft” which “did not need to be disclosed to Plaintiffs”, is, as

Plaintiffs describe it, “nonsensical”. (Id. (citing Balsamo MIL

Opp’n at 2).) More troubling, it is ipse dixit; the County has

not produced an iota of evidence supporting such a claim. Nor

does a review of the 2019 Report support such an attempted re-

characterization. (See, e.g., Balsamo 2019 Report, ECF No. 625-

2, at 1 (stating the 2019 Report “was submitted to The Suffolk

County Attorney’s Office through the Suffolk County Attorney, Mr.

Dennis Brown, pursuant to Fed. R. Civ. P. Rule 26(a) (2) (B)” “on

March 1, 2019”).) Furthermore, as Plaintiffs argue, “[e]ven if

the 2019 Report were in draft and was being withheld as work

product, the County had an obligation to put it on a privilege

log, which it never did.” (Balsamo MIL Reply at 3.) Simply put:

The County’s “draft”-status claim is spurious.

Moreover, “[t]he duty to supplement arises when the

expert subsequently learns of information that was previously

unknown or unavailable, and the new information renders the earlier

report incomplete or inaccurate.” Lewis v. FMC Corp., 786 F. Supp.

2d 690, 705 (S.D.N.Y. 2011) (citing FRCP 26(e)). Rule 26(e),

however, does not “permit a party to supplement an expert report

at any time it wishes, ‘but instead imposes an obligation to

supplement the report when a party discovers the information that

it has disclosed is incomplete or incorrect.’” Coene v. 3M Co.,

303 F.R.D. 32, 42 (W.D.N.Y., 2014) (quoting Lewis, 786 F. Supp. 2d

at 705; further citation omitted). Further,

[w]here a party has failed to comply with a

court-imposed deadline for expert disclosures

and then seeks to avoid preclusion, courts

consider (1) the reason for the non-

compliance, (2) the importance of the witness

to be precluded, (3) prejudice to the opposing

party, and (4) any potential for continuance

[(hereafter, the “Softel Factors”)].

Scharrer v. United Sates, 2016 WL 3547933, at *2 (W.D.N.Y. June

30, 2016) (precluding expert testimony due to disclosing party’s

“utter failure to explain the reason for . . . six-month delay in

making timely expert disclosure, effectively asking the court to

ignore an apparent egregious disregard” of the court-ordered

schedule (citing Softel, Inc. v. Dragon Med. & Sci. Commc’ns, Inc.,

118 F.3d 955, 961 (2d Cir. 1997))); see also Mills v. Steuben

Foods, Inc., No. 19-CV-1178, 2024 WL 4223647, at *4 (W.D.N.Y. Sept.

18, 2024) (applying Softel Factors; finding party “should not be

rewarded for having ‘sandbagged’” its adversary with party’s

“extraordinary late expert disclosure”), appeal filed (2d Cir.

Nov. 8, 2024). It is well within the Court’s discretion to

preclude expert witness testimony where the expert’s report is

provided after a discovery deadline. See Softel, 118 F.3d at 961–

63 (affirming lower court’s orders to preclude expert reports

submitted past discovery cutoff date); Mills, 2024 WL 4223647

(applying Softel Factors; striking as untimely plaintiff’s

expert’s report and precluding expert from testifying); Mobileye,

Inc. v. Picitup Corp., 928 F. Supp.2d 759, 766 (S.D.N.Y. 2013)

(striking an untimely expert declaration). The party against whom

sanctions are sought bears the burden of establishing that

noncompliance was either “substantially justified or harmless.”

Columbia Cas. Co. v. Neighborhood Risk Mgmt. Corp., No. 2016 WL

184407, at *2 (S.D.N.Y. Jan. 15, 2016).

Applying the Softel Factors here warrants precluding

Balsamo from testifying. Regarding the first Softel Factor: The

County did not provide any reason for its non-disclosure of

Balsamo’s 2018 Inspections. Further, its reason for not disclosing

the 2019 Report, i.e., that it was a “draft”, is patently

incredible. Regarding the second Softel Factor: As will be more

fully addressed, infra, Balsamo’s testimony is not crucial for the

jury to understand Ms. Skipworth’s opinion testimony. Moreover,

the unavailability of Balsamo will not impede the County’s ability

challenge Ms. Skipworth’s testimony; it may do so with effective

cross-examination. Regarding the third Softel Factor: After

Balsamo’s 2108 Inspection and his 2019 Report, the County knew the

position it had presented to the Court on summary judgment was

inconsistent with the actual facts (compare Franchi 2018 Decl.,

ECF No. 483-20; see Balsamo MIL Reply at 4); yet, it took no steps

to correct the inaccuracies. And, at a minimum, what was uncovered

during the 2018 Inspection and what was contained in the 2019

Report was plainly responsive to Plaintiffs’ discovery requests,

but neither was not revealed until after close of supplemental

discovery and only during Balsamo’s September 2024 deposition,

thereby thwarting Plaintiffs ability to further investigate what

had been revealed. This is certainly prejudicial to Plaintiffs.

Finally, regarding the fourth Softel Factor: Given the protracted

length of this Action, the projected length of the trial, its

nature as a large class-action case, the various and involved

logistical considerations for making several of the Subject

Witnesses available to testify, and that the trial has already

been continued once, continuance of the Action is not a reasonable

or pragmatic option. Additionally, the County has woefully failed

to show its initial nondisclosure and subsequent late disclosure

of the 2018 Inspection and 2019 Report was either substantially

justified or harmless. Rather, having considered: (a) the various

nuances of what transpired with Balsamo, from his undisclosed 2018

Inspection and 2019 Report, to their revelations at Balsamo’s 2024

deposition, after the close of the supplemental discovery period;

(b) the Softel Factors, which, in the aggregate weigh decidedly in

Plaintiffs’ favor; and (c) the County’s inability to justify its

conduct or demonstrate that said conduct was harmless, the Court

finds preclusion of Balsamo is justified. Under the scenario

presented, to hold otherwise would be tantamount to rewarding the

County “for having ‘sandbagged’” Plaintiffs with its

“extraordinary late expert disclosure”. Mills, 2024 WL 4223647,

at *4.

In sum, the County’s failure to disclose Balsamo’s 2018

Inspection or 2019 Report until after Balsamo’s September 2024

depositions, during which deposition he disclosed same (see

Balsamo MIL Support Memo at 19), warrants sanctions. It is not

enough to preclude the County from introducing or relying upon the

2019 Report since, apparently anticipating the proverbial “writing

on the wall”, the County has proactively stated its current

intention not to rely upon it--or Balsamo’s undisclosed 2018

Inspection--notwithstanding having included the 2019 Report in its

latest Exhibits List (see ECF No. 667-4 at p.24 (listing Ex. WWWWWW

(Balsamo 2019 Report)).

Finally, like the court in Paulus v. Holimont, this:

Court is cognizant of the Second Circuit’s

counsel that district courts should consider

“lesser sanctions prior to precluding evidence

as a sanction for discovery violations.”

However, given the late stage of this

litigation, on the eve of trial with no

credible explanation for the failure to timely

disclose [the 2018 Inspection and 2019 Report]

and the inherent prejudice that [Plaintiff]

would suffer if Mr. [Balsamo] was allowed to

testify, the Court concludes that no sanction

other than preclusion is appropriate. As a

result, [the County is] precluded from

offering Mr. [Balsamo]’s testimony at trial in

accordance with Fed. R. Civ. P. 37(c)(1).

315 F.R.D. 13, 18 (W.D.N.Y., 2016) (quoting Coene, 303 F.R.D. at

42 (citing Outley v. City of N.Y., 837 F.2d 587, 591 (2d Cir.

1988)).

3. Plaintiff’s Alternative FRE 702 Request

The County produced Balsamo’s revised 2024 Report on

August 5, 2024, but did not make Balsamo available for deposition

until September 2024. Relying upon FRE 702 and asserting

“Balsamo’s opinions are not based on any recognized methodology or

reliable basis,” Plaintiffs also ask that Balsamo not be permitted

to testify. Plaintiffs highlight Balsamo did not visit the

Facilities in preparing his 2024 Report, instead “limit[ing] his

written opinions to critiques of Ms. Skipworth’s observations and

opinions.” (Balsamo MIL Support Memo at 7.) Plaintiffs contend

Balsamo’s 2024 Report “reflects multiple deficiencies derived from

[his] failure to apply any recognized methodology or approach that

is either testable or supports his experience-based critiques”,

making “[h]is opinions and critiques . . . nothing more than his

ipse dixit”, thereby warranting exclusion. (Id. at 10.) More

particularly, as to methodology, Plaintiffs complain about

Balsamo’s unjustified use of a 5% adjustment to certain of Ms.

Skipworth’s testing results, as a purported margin-of-error, and

then using that 5% adjustment only in a manner that favored the

County. (See id. at 11.) According to Plaintiffs, “By admitting

he applied an adjustment inconsistently and without a factual basis

for doing so, Mr. Balsamo conceded that he did not follow a

reliable or testable method when making these critiques of Ms.

Skipworth, and his opinions should be excluded on that basis.”

(Id. at 12 (citing Rigel v. Medtronic, Inc., 451 F.3d 104, 127 (2d

Cir. 2006) (upholding a district court’s decision to exclude an

expert where expert failed to provide an explanation as to how he

reached his conclusion); further citation omitted).)

And, as to lack of factual foundation, Plaintiffs

underscore that, for the 2024 Report, Balsamo “never made any

personal observations of the conditions of the SCCF, and he did

not state that he relied on any personal observations in rendering

[his] opinions summarized in his . . . 2024 Report[].” Plaintiffs

further underscore that Balsamo’s 2019 Report—-which was based on

site visits—-is inconsistent with his early 2017 Report. (See

id.) Plaintiffs appear to theorize that, unlike in other instances

where Balsamo based his opinions on site visits—-including his

2019 Report--by not visiting the Facilities to prepare his 2024

Report, Balsamo would be able to avoid reaching results consistent

Ms. Skipworth. (Id. at 12.) In sum, Plaintiffs contend Balsamo’s

opinions are unreliable since they are based upon unreliable

analyses and lack factual support.

Plaintiffs provide examples of the unreliability of

Balsamo’s 2024 Report by category. As to lighting, Balsamo did

not follow any particularized method, instead relying upon a

presumed 5% standard of error and applying it inconsistently, as

well as rounding up observations without using fractions, which he

conceded during his September 2024 deposition testimony was wrong.

(See id. at 13-14.) As to water temperatures, Balsamo made

unfounded assumptions in rebutting Ms. Skipworth’s observations,

as well as adjusted various Skipworth-water-temperature-

observations, which Balsamo did not do in his 2019 Report, where

he recorded water temperatures registering below acceptable

standards. (See id. at 14 (citing 2019 Report).) As to

ventilation, among other things, while criticizing Ms. Skipworth

for not using equipment that generated specific observations of

airflow, Balsamo “conceded during deposition that his critique is

not viable because he admitted that it is possible to make relevant

observations of ventilation systems even without employing such

equipment”. (Id. at 14-15 (noting further that, in his 2019

Report, Balsamo indicated humidity levels in inspected cells were

high and “various cells and other areas in Riverhead lacked good

air flow rates, consistent with Ms. Skipworth’s opinion” (citing

2019 Report at 29-30)).) As to mold, which Ms. Skipworth

identified at the Facilities both by visual inspection and by

collecting samples submitted for lab analysis, among other things,

Balsamo “admitted that visual inspections to determine the scope

of mold are important” and he never asked to review–nor did he—

any of the Skipworth-related lab reports documenting mold

findings. (See id. at 15 (citing Balsamo’s Sept. 2024 deposition

testimony).) As to toilets and exposure to sewage, Balsamo

acknowledged he had no basis for opining that inmate exposure to

ping-pong toilets and sewage did not appear to be a real issue.

(See id. at 15-16 (citing Balsamo’s Sept. 2024 deposition

testimony).) As to peeling paint and rust, while acknowledging

these conditions, Balsamo “offered a baseless conclusion that

these are not significant risks”, despite his reaching an opposite

conclusion for less serious conditions in reports he has prepared

in other cases. (See id. at 16 (citing Balsamo’s Sept. 2024

deposition testimony, and Workhouse Jail Report, Ex. 21, ECF No.

625-21, attached to Klebanoff Omnibus Decl.).) As to vermin, inter

alia, Balsamo acknowledged he did not know the frequency with which

exterminators visited the Facilities and his opinion was based

solely upon the Skipworth Report, including reviewing photographs

included therein. (Id. at 16 (citing Balsamo’s Sept. 2024

deposition testimony).) As to food safety, “Balsamo conceded that

he has no evidence as to whether the steps he believes should be

taken to improve food safety and sanitation have been implemented”.

(Id. (citing Balsamo’s Sept. 2024 deposition testimony).)

Finally, as to leaks, notwithstanding his irrelevant comment

regarding repairs, Balsamo conceded Ms. Skipworht’s observations

about leaks were valid. (See id. (citing Balsamo 2024 Report)).

In opposition, the County contends Balsamo will: first,

critique the equipment used by Ms. Skipworth and her supposedly

not properly calibrating said equipment; second, explain the

differences between standards used to assess correctional

facilities; and third, provide point-by-point responses to Ms.

Skipworth’s observations. (See Balsamo MIL Opp’n at 4.) The

County maintains that Balsamo’s opinions satisfy the Daubert

requirements since they rest on a reliable foundation and are

relevant to the issue at hand. (Id. at 5 (quoting In re Mirena

IUS Levonorgestrel-Related Prods. Liab. Litig. (No. II), 982 F.3d

113, 122-23 (2d Cir. 2020)).)

The County puts forth three main arguments for its

position. First, according to the County, “Balsamo’s methodology

was to compare Ms. Skipworth’s observations to the relevant

standards published by the APHA, ACA, and other bodies”, the use

of which “is generally accepted by sanitarians.” (Id. at 6

(citation omitted).) Second, as to the 5% margin of error employed

by Balsamo, which Plaintiffs contend was not used in a reliable

manner, i.e., it was applied in a biased manner favoring the

County, the County asserts issues of bias are best addressed in

cross-examination and not a Daubert motion. (See id. (citing B&R

Supermarket, Inc. v. Visa Inc., No. 17-CV-2738, 2024 WL 4252031,

at *26 n.24 (E.D.N.Y. Sept. 25, 2024)).) Third, the County

maintains, given Balsamo’s 55 years of relevant experience and his

having applied universally accepted standards for prison

conditions, Balsamo’s vast experience “makes it possible for [him]

to evaluate whether Ms. Skipworth’s observations constitute

violations of the relevant standards without relying upon his own

observations.”3 (Id. at 7.)

Honorable Margo K. Brodie, Chief District Judge of this

District, has recently thoroughly articulated the FRE 702 standard

for determining the admissibility of expert testimony, which this

Court adopts and incorporates by reference herein. See B&R

Supermarket, 2024 WL 4252031, at *2-3. For convenience, the Court

reiterates, here, that the party putting forth expert testimony

carries the burden of establishing by a preponderance of the

evidence its admissibility. See United States v. Williams, 506

F.3d 151, 160 (2d Cir. 2007); see also United States v. Jones, 965

F.3d 149, 161 (2d Cir. 2020) (“While the proponent of expert

3 The Court notes – other than generally addressing the calibration

of equipment, the application of standards and Balsamo’s

application of a 5% margin-of-error, and Balsamo’s comparison of

Ms. Skipworth’s observations with published guidelines – the

County failed to address the specific topics covered by Ms.

Skipworth in her Report and addressed by Plaintiffs’ in their

opening brief. (Compare Balsamo MIL Support Memo at 13-16

(specifically addressing: lighting; water temperatures;

ventilation; mold; toilets and exposure to sewage; peeling paint

and rust; vermin; food safety; and leaks), with Balsamo MIL Opp’n

at 4 (highlighting issues regarding vermin and ventilation).)

Indeed, Plaintiffs argue the County “does not even bother to defend

the majority of Mr. Balsamo’s opinions” and, therefore, such

undefended opinions “are inherently unreliable” and “should be

precluded.” (Reply at 6.) The Court finds this argument

persuasive.

testimony has the burden of establishing by a preponderance of the

evidence that the admissibility requirements of Rule 702 are

satisfied, . . . the district court is the ultimate gatekeeper.”

(alteration in original) (quoting Williams)); United States v.

Gentile, No. 21-CR-0054, 2024 WL 3455834, at *2–3 (E.D.N.Y. July

17, 2024) (stating FRE 702 standard).

Here, even assuming arguendo Balsamo is qualified as an

expert and notwithstanding valid challenges to the purported

reliability of Balsamo’s methodology and data, the County cannot

satisfy its FRE 702 burden because it has failed to demonstrate

Balsamo’s testimony will assist the trier of fact in understanding

Ms. Skipworth’s observations. See, e.g., B&R Supermarket, 2024 WL

4252031, at *3 (stating, to permit a person to testify as an expert

pursuant to FRE 702, a court must find: “(1) the witness is

qualified to be an expert; (2) the opinion is based upon reliable

data and methodology; and (3) the expert’s testimony on a

particular issue will “assist the trier of fact” (quoting Nimely

v. City of N.Y., 414 F.3d 381, 396–97 (2d Cir. 2005); collecting

cases)). As the Plaintiffs’ persuasively argue: “[I]t does not

require expert testimony to compare Ms. Skipworth’s measurements

with the measurements prescribed by guidelines. Such testimony is

simply not the proper subject of expert testimony.” (Balsamo MIL

Reply at 7; see also id. (“Testimony is properly characterized as

‘expert’ only if it concerns matters that the average juror is not

capable of understanding on his or her own.” (quoting United States

v. Mejia, 545 F.3d 179, 194 (2d Cir. 2008)), further citation

omitted)).) The Court agrees; there is nothing in the record to

dissuade the Court from finding that “[t]he jury is capable of

understanding without Mr. Balsamo’s assistance whether a

particular measurement recorded by Ms. Skipworth falls above or

below a published threshold.” (Id. (collecting cases).) Moreover,

as aptly asserted by Plaintiffs, there can be little doubt that

“the County will surely flag how Ms. Skipworth’s observations

compared to published thresholds when cross examining her,”

thereby “making any such testimony from Mr. Balsamo superfluous.”

(Id. at 8 (citing, Luitpold Pharm., 2015 WL 5459662, at *3 (“Rule

403 is as applicable to expert testimony as it is to percipient

witnesses or other evidence . . . .”); FRE 403 (“The court may

exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . wasting time . . . .”)).)

Accordingly, on this alternative basis, the Court finds preclusion

of Balsamo’s testimony is warranted.

IV. The SE-MIL

A. Plaintiffs’ Position

The instant SE-MIL motion involves Plaintiff’s expert’s

use of sampling as a means of of establishing that the conditions

observed by her in the Facilities, in her restricted access to

said Facilities, which restricted access was at the insistence of

the County, are representative of the conditions throughout the

Facilities. (See SE-MIL Support Memo at 1.) Plaintiffs highlight

the Court agreed that Plaintiffs’ “random sampling methodology was

the generally appropriate means to assess conditions within the

SCCF,” notwithstanding its limiting that approach. (See id. at 1

(citing Sept. 4, 2015 Hr’g Tr., ECF No. 417).) Thus, Plaintiffs

contend, since the County insisted Plaintiff’s replacement expert,

Ms. Skipworth, be bound to this approach, it “cannot now be

permitted to argue that the sampling evidence Plaintiffs have

collected is not representative of the conditions in the SCCF or

insufficient for extrapolation throughout the SCCF on the basis of

an insufficient sample.” (Id. at 1-2.) Indeed, the Plaintiff

underscores the County insisted Ms. Skipworth be restricted to

inspecting only the precise areas previously inspected by

Plaintiff’s prior expert, Mr. Pepper, which scope-of-inspection

the Court endorsed. (See ECF No. 571 (Joint Mot. Compel); ECF No.

572 (AYS Order).) The Court maintained this limited scope-of-

inspection even after Plaintiffs sought an expansion “due to

irregularities suggesting the County had deliberately attempted to

obfuscate the true state of conditions within the SCCF ahead of

inspections.” (Id. at 2 (citing, inter alia, ECF No. 578 (Pls.’

Mot. Compel); ECF No. 581 (AYS Denial Order4)).)

4 Among other things, Magistrate Judge Shields ruled: “Any

observations made by Plaintiffs’ expert that indicate maintenance

Plaintiffs rely upon the Supreme Court’s decision in

Tyson Foods, Incorporated. v. Bouaphakeo, in which the High Court

instructed: “A representative sample may be used to establish

classwide liability.” 577 U.S. 442, 460 (2016); (see also SE-MIL

Support Motion at 3 (quoting Tyson Foods)). In that vein,

Plaintiffs explain: (1) Ms. Skipworth assessed “the precise sample

of cells” that Mr. Pepper sampled in his inspection; (2) Mr. Pepper

“explained the basis and validity of his sampling selection” in

his Report (SE-MIL Support Motion at 3 (citing Pepper Report at 4-

5)); and (3) using a sampling methodology is the same “approach

taken by the County’s own expert in other cases.” (Id. (citing

Ex. 20, ECF No. 625-20, 8, 24, 29 (Balsamo’s Inspection Report for

a Missouri medium security correction facility, for which

inspection Balsamo used sampling), attached to Klebanoff Omnibus

Decl.).) Given this background, Plaintiffs argue the County should

not “be heard to argue that Plaintiffs’ sample was deficient to

its purposes in any way.” (Id. (citing New Hampshire v. Maine,

532 U.S. 742, 749 (2001) (“[A]bsent any good explanation, a party

should not be allowed to gain an advantage by litigation on one

theory, and then seek an inconsistent advantage by pursuing an

or painting conducted just prior to the inspection can be

referenced in Plaintiffs’ expert report, along with any other

observations. Subject to the rulings of the District Court, the

finder of fact will be allowed to make any appropriate inferences

that flow from such observations.” (ECF No. 581 at 1.)

incompatible theory.” (quoting WRIGHT & MILLER ET AL., FEDERAL PRACTICE

AND PROCEDURE § 4477))).) Likewise, Plaintiffs contend the County

should not be able to suggest to the jury that Ms. Skipworth’s

findings cannot be extrapolated to apply to the Facilities as a

whole or that her samplings are insufficient. (See id.)

B. The County’s Position

In opposition, the County asserts it “does not plan to

argue that Ms. Skipworth’s observation of only select areas of the

SCCF was not sufficient,” but it argues against the “Plaintiffs’

position that Ms. Skipworth should be able to testify that her

findings can be ‘extrapolated’ throughout the SCCF.” (SE-MIL Opp’n

at 1; see also id. at 4 (“The County does not intend to re-argue

the issue regarding the parameters of the inspection, nor do they

[sic] intend to contest the sampling method that Plaintiffs’ new

expert, Ms. Skipworth[,] employed . . . .”).) Therefore, the

County requests Ms. Skipworth’s testimony be limited to “only the

areas of the SCCF that she observed and inspected.” (Id.)

The County’s opposition is premised upon the contention

that courts are to exclude expert testimony which is speculative

or conjectural or which is based upon unrealistic assumptions or

is contradictory. (See id. at 4.) More specifically, the County

argues that to allow Ms. Skipworth to testify regarding areas of

the Facilities she did not personally observe or inspect “and claim

that those un-inspected areas are all the same as the areas she

did inspect” is tantamount to mere conjecture and speculation.

(Id. at 5.) Therefore, according to the County, such testimony

should be excluded. (See id. (citations omitted).) Similarly,

testimony inviting “the jury to speculate is the type of improper

expert testimony that should be excluded.” (Id. (citation

omitted).) The County further advances the argument that an

expert’s testimony must be based upon sufficient facts or data, as

another reason to limit Ms. Skipworth’s testimony to only the areas

she inspected. (See id. at 6 (citing FRE 702(b); further citation

omitted).)

C. The Court’s Ruling

As persuasively articulated by Plaintiffs, “[b]y arguing

Ms. Skipworth cannot opine on areas in the SCCF she did not

directly observe, the County is effectively seeking to challenge

the adequacy of Ms. Skipworth’s sample” (SE-MIL Reply at 2);

however, since the County does not contest the adequacy of the

sample, it must be precluded from challenging extrapolation from

said sample. (See id.) The Court agrees.

If the County had challenged the sufficiency of Ms.

Skipworth’s sample, which, given its insistence on having the

scope-of-inspection contained, it could not do in good faith, then

there might be a basis to challenge the sufficiency of the facts

or data in the Skipworth Report. See FRE 702(b). But, the County’s

concession to the sufficiency of Ms. Skipworth’s sample (see, e.g.,

SE-MIL Opp’n at 1 (“The County does not plan to argue that Ms.

Skipworth’s observations of only select areas of the SCCF was not

sufficient.”), negates this basis to object. Indeed, as astutely

put forth by Plaintiffs: “When a sample is representative of the

greater population, ‘data from the sample can be extrapolated to

describe the characteristics of that population’” since “‘the very

purpose of creating a representative sample of sufficient size is

so that, despite the unique characteristics of the individual

members populating the underlying population, the sample is

nonetheless reflective of the proportion of the individual members

in the entire population exhibiting any given characteristic.’”

(SE-MIL Reply at 2-3 (first quoting David H. Kaye & David A.

Freedman, Reference Guide on Statistics, in FED. JUD. CTR., REFERENCE

MANUAL ON SCIENTIFIC EVIDENCE, at 226–27 (3d ed. 2011), available at

https://www.fjc.gov/sites/default/files/2015/ SciMan3D01.pdf.;

then quoting Assured Guar. Mun. Corp. v. Flagstar Bank, FSB, 920

F. Supp. 2d 475, 512 (S.D.N.Y. 2013) (cites cleaned up)).)

Accordingly, Plaintiffs’ request for a protective order precluding

the County “from challenging Plaintiffs’ experts on the basis that

the sampling approach they employed . . . was deficient and does

not establish that the observed conditions are representative of

the conditions throughout the Suffolk County Correctional

Facilities” (SE-MIL Motion) is GRANTED. Finally, as Plaintiffs

themselves state, granting this Motion in no way restricts the

County from “challeng[ing] whether Ms. Skipworth’s observations

are accurate and whether they support the conclusions she draws

from them.” (SE-MIL Reply at 1.)

CONCLUSION

Accordingly, IT IS HEREBY ORDERED:

I. The Motion In Limine Regarding Plaintiffs’ Witnesses’

Personal Histories and Presentation In Court (ECF No. 615) is

GRANTED in part and DENIED in part. As more fully explained

herein, for the portion of the MIL that is GRANTED, the following

categories of evidence are precluded:

A. juvenile adjudications;

B. histories of substance abuse;

C. prison disciplinary histories;

D. misdemeanors more than ten years old;

E. felony convictions more than ten years old;

F. the Subject Witnesses’ conviction statuses; and

G. incarceration jackets.

To the extent the Court reserves decision regarding the following

categories of evidence:

H. misdemeanors less than ten years old;

I. felony convictions less than ten years old; and

J. prior bad acts,

(hereafter, the “Crimes & Bad Acts Evidence”), for administrative

purposes, the MIL is deemed DENIED in part; however, said denial

is without prejudice. If the County seeks to use any Crimes & Bad

Acts Evidence, Plaintiffs may move for preclusion. After hearing

the Parties’ arguments, the Court will render its ruling(s). In

conjunction with this ruling, by no later than Monday, February

10, 2025, at 9:00 a.m., the County is to file a document5 (in table

format) identifying: (1) each of the Subject Witnesses for which

it seeks to use any Crimes & Bad Acts Evidence; and (2) for each

Subject Witness: (a) a brief description of each specific Crimes

& Bad Acts Evidence sought to be introduced, including, the date

of occurrence, as well as (b) the proposed basis its admission;

II. The Motion In Limine To Preclude James Balsamo’s

Testimony (ECF No. 619) is GRANTED; and

III. The Motion In Limine on Sampling Evidence (ECF No. 621)

is GRANTED.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: February 5, 2025

Central Islip, New York

5 The County is advised to use the “Witness List” event when

filing this document to ensure it is restricted to court users and

case participants.