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 the County’s

Omnibus Motion In Limine and Daubert Motion (the “Omnibus Motion”),

which Plaintiffs oppose. (See ECF No. 609; see also Support Memo,

ECF No. 611; Support Decl., ECF No. 610; Opp’n, ECF No. 636; Opp’n

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.)

Decl., ECF No. 637; Reply, ECF No. 640; and, Reply Decl., ECF No.

639.) More specifically, the Omnibus Motion is comprised of five

motions in limine (“MILS”; singularly, “MIL”) and a single Daubert

motion. The MILs seek the exclusion of:

1. references to Plaintiffs’ previous and currently unavailable

experts, Mr. Pepper and Dr. Bick (hereafter, the “Pepper/Bick

MIL”);

2. testimony from and grievances submitted by Class Members

Kenneth J. Williams, Kenneth Williams, and Michael Boyle

(hereafter, the “Williams/Boyle MIL”);

3. inmate grievances as evidence of prison conditions

(hereafter, the “Grievances MIL”);

4. arguments based upon the County’s budgetary procedures and

legislative process (hereafter, the “Procedures MIL”); and

5. references to diseases for which no Class Members were

diagnosed (hereafter, the “Diseases-Not-Suffered MIL”).

(See Support Memo at 1-2.)

By way of its Daubert motion, the County seeks to exclude

the testimony of Plaintiffs’ proffered medical expert, Dr.

Muthusamy Anandkumar. (See id. at 1.) For all intents and

purposes, it is the County’s sixth MIL; for convenience, the Court

shall refer to it as the “Daubert MIL”.

The Court proceeds to address each of the above-listed

MILs, in order.

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 County’s Motions in Limine

A. The Pepper/Bick MIL

1. The County’s Position

The County contends Plaintiffs intend to introduce the

opinions and testimonies of their prior experts, Mr. Pepper and

Dr. Bick, neither of whom is now available, via their current

proffered experts, Ms. Skipworth and Dr. Anandkumar. (See Support

Memo at 3-7.) The County highlights that, in their respective

Reports, each of these proffered experts refer to the prior Reports

of Mr. Pepper2 and Dr. Bick.3 For example, in her Report, Ms.

Skipworth compared the conditions of the Facilities she observed

2 The Pepper Report is the December 16, 2015 Report, revised

February 22, 2017. Thus, where referred to as the “2017 Pepper

Report” by the Court, it is this Report to which the Court refers.

Moreover, while docketed several times in this Action, herein the

Court cites to the Pepper Report as docketed under ECF No. 637-1.

3 The Bick Report is the February 24, 2017 Report. It is docketed

in this Action at ECF No. 480-113.

“to the conditions documented in Mr. Pepper’s report.” (Support

Memo at 3 (quoting Skipworth Report, Ex. A, ECF No. 610-1, attached

to Support Decl., ECF No. 610); see also id. at 3-4 (providing

further examples in Skipworth Report.) Additionally, Ms.

Skipworth “also relied upon the photos taken by Dr. Pepper” without

“doing anything to verify their accuracy.” (Id. at 4.) Similarly,

in his Report, Dr. Anandkumar relied upon the Pepper Report (see

id. at 4 (citing Anandkumar Report, Ex. B, ECF No. 610-2, at 5-6,

attached to Support Decl.)), as well as made “heavy use of Dr.

Bick’s report.” (See id.; see also id. at 4-5 (providing further

examples in Anandkumar Report).)

While the County recognizes FRE 703 “allows an expert to

rely upon inadmissible evidence that ‘experts in the particular

field would reasonably rely on’”, it argues “an expert cannot

‘blindly rely on reports prepared . . . by non-testifying

experts.’” (Id. at 5 (quoting Fed. Housing Fin. Agency v. Nomura

Holding Am., No. 11-CV-6201, 2015 WL 539489, at *10 (S.D.N.Y. Feb.

10, 2015), and citing In re Methyl Tertiary Butyl Ehter (MTBE)

Prods. Liabl. Litig., 980 F. Supp. 2d 425, 442 (S.D.N.Y. 2013)

(“An expert’s report may not be used as a conduit for the

inadmissible hearsay of another.”)).) Thus, here, since neither

Ms. Skipworth nor Dr. Anandkumar did anything to verify the Pepper

Report or Bick Report, upon which they rely, “they are merely

acting as conduits, which is not permissible. (Id. at 6.) In

other words, “[i]f Ms. Skipworth and Dr. Anandkumar were permitted

to rely on or reference [Mr. Pepper’s and/or Dr. Bick’s Reports],

it would subject the County to the testimony of two experts that

they cannot cross-examine.” (Id.) Plus, such reliance would

further and improperly bolster Ms. Skipworth’s and Dr.

Anandkumar’s testimony by claiming other experts agree with their

testimony. (See id.)

In addition, the County asks that photographs taken by

Pepper not be admitted since Plaintiffs do not have a witness who

can authenticate them. (See id.) It takes the position that, in

this instance, Pepper “is the only individual familiar with the

photos he took,” thereby making him “the only individual capable

of authenticating them.” (Id. at 7.) Without him to do so,

therefore, his photographs become inadmissible. (See id.)

2. Plaintiffs’ Position

In opposing the County’s Pepper/Bick MIL regarding the

use of Plaintiffs’ prior expert Reports, Plaintiffs acknowledge

said Reports may be hearsay, but assert they are, nonetheless,

appropriate sources upon which Plaintiffs’ current experts may

reply since, “[a]lthough there may be valid concerns where an

expert relies on ‘the findings of another expert without

familiarity regarding the basis for that expert’s findings,’ there

is nothing ‘improper’ about an expert incorporating a prior

expert’s observations into her own report where she also includes

‘additional observations’ based on her own review of the

‘underlying materials.’” (Opp’n at 4 (quoting Am. Home Assurance

Co. v. Merck & Co., 462 F. Supp. 2d 435, 448 (S.D.N.Y. 2006)); see

also id. at 5 (collecting cases).) Because Ms. Skipworth assessed

the same areas of the Facilities as Pepper, there can be no serious

debate that she did so without properly understanding the basis

for Pepper’s findings. (See id. at 5.) Further, the County

deposed Pepper regarding his observations, as well as retained

Balsamo to assess and critique Pepper’s opinions; thus, Pepper’s

opinions have been subject to cross-examination. (See id.)

Moreover, Ms. Skipworth not only reviewed Pepper’s

findings, she “conducted her own inspection of the SCCF to

formulate her opinions about the impact of the conditions within

the SCCF on environmental health.” (Id.) Under such a scenario,

where the replacement expert made herself familiar with the

original expert’s findings, and then conducts her own inspection

and made her own findings, which were similar to those of the

original expert, there is nothing improper about the replacement

expert incorporating the original expert’s findings into the

replacement expert’s report. (See id. (discussing American Home

Assurance Company for its endorsement of this approach); see also

id. at 6 (relying upon Jung v. Neschis, No. 01-CV-6993, 2007 WL

5256966, at *15 (S.D.N.Y. Oct. 23, 2007), for the same

proposition).)

The Plaintiffs put forth the same argument as to Dr.

Anandkumar: His reliance on the Pepper Report and Bick Report4 is

permissible in this instance because, in addition to relying upon

those prior Reports, Dr. Anandkumar made his own findings. (See

id. at 6 (providing an example of Dr. Anandkumar noting the same

ventilation obstructions being present in 2024 as recorded by Bick

in his earlier Report, and opining “the risk of inadequate

ventilation and its associated health risks remains unresolved”

(quoting Anandkumar Report at 12)).) Therefore, according to

Plaintiffs, “Dr. Anandkumar’s use of Dr. Bick’s report involves

his independent expert opinion and is clearly permissible.” (Id.)

Regarding the Pepper Photos, Plaintiffs take the

position that said photos have already been authenticated by Pepper

through his Report and deposition. (See id.; see also id. at 7

(“Mr. Pepper testified that he took the photographs during his

inspection and that ‘the entire set’ was included in this report.”

(quoting Pepper Dep. Tr. at 199-202)).) “And the County purported

to have its own expert rely on these same photographs to conclude

that the conditions within the SCCF did not pose a substantial

risk of harm to inmates.” (Id. at 7.) Given this, and that the

bar for authenticating evidence is not particularly high,

4 Plaintiffs further take the position that because the County

had the opportunity to depose Bick, but chose not to do so, Bick’s

opinions were subject to cross-examination. (See Opp’n at 5

(citing, e.g., Jung, 2007 WL 5256966, at *16).)

Plaintiffs argue “[t]he County cannot now reasonably suggest that

Mr. Pepper’s photographs are inauthentic.” (Id.)

3. The Court’s Ruling

a. The Pepper/Bick Reports

i. The Pepper Report

The Court agrees with Plaintiffs that, given the facts

and circumstances of this case, this is not a situation where the

replacement experts are being used as conduits to introduce the

hearsay evidence of the non-testifying, original experts. As the

Jung Court stated, “there are numerous cases allowing experts to

rely on findings by other experts.” 2007 WL 5256966, at *16

(collecting cases). It underscored that “[t]he operative term

appears to be ‘findings’”, explaining courts “appear to

distinguish between the rather prejudicial circumstance of experts

relying upon, or reciting, the opinions of other experts not

subject to cross-examination, and modern evidence law’s apparent

recognition that experts often rely on facts and data supplied by

third-parties, including other experts.” Id. (citing, e.g., Bryan

v. John Bean Div. of FMC Corp., 566 F.2d 541, 545 (5th Cir. 1978);

Am. Home Assurance, 462 F. Supp. 2d at 448 (S.D.N .Y.2006))

(emphasis in Jung).

Here, Ms. Skipworth’s inspection was restricted to the

same areas of the Facilities which Pepper inspected, and like

Pepper, Ms. Skipworth conducted her inspection using the American

Public Health Association’s Standards for Health Services in

Correctional Institutions (3d ed.). (Compare Pepper Report at 5,

with Skipworth Report, ECF No. 610-1, at 6.) Further, Ms.

Skipworth reviewed the April 5, 2012 Amended Complaint, as well as

the 2017 Pepper Report, the Anandkumar Report, and “other documents

in the discovery record which are cited in [the Skipworth R]eport”.

(Skipworth Report at 5.) The Court rejects the County’s argument

that Ms. Skipworth should not be able rely upon Pepper’s Report

because she did not review all of the underlying documents reviewed

by Pepper. (See Reply at 4 (citing Pepper Report at 3-4).) In

advancing that position, the County relied upon the American Home

Assurance Court’s partial reasoning for determining it was

appropriate for a replacement expert to incorporate the original

expert’s findings into the replacement expert’s report, i.e., the

replacement expert had “reviewed all the underlying materials that

informed the [original] Report and reached similar conclusions.”

462 F. Supp. 2d at 448. Yet, other than its bald claim that Ms.

Skipworth did not review all the documents Pepper did, it does not

explain how this apparent truncated review stymied Ms. Skipworth’s

ability for familiarize herself regarding the basis for Pepper’s

findings. Moreover, a fair reading of the relevant section of

American Home Assurance shows the consideration of all the

underlying materials was not a controlling consideration, but

merely one factor in determining whether the replacement expert

had sufficient familiarity regarding the basis for the original

expert’s findings. Here, by comparison, having reviewed the Pepper

Report and the Skipworth Report, the Court is satisfied Ms.

Skipworth is sufficiently familiar with the basis for Pepper’s

findings, especially since she: reviewed essential documents,

e.g., the operative Complaint and the Pepper Report; employed the

same Standards as Pepper; and, conducted an independent inspection

of the same areas of the Facilities to make her own findings.

Therefore, there is nothing improper about Ms. Skipworth

incorporating Pepper’s findings into her Report. See, e.g., Am.

Home Assurance, 462 F. Supp. 2d at 448. To the extent Dr.

Anandkumar has incorporated any of Pepper’s findings in his Report,

for the same reasons articulated supra and infra, Dr. Anandkumar

may also refer to the Pepper findings.

ii. The Bick Report

As to incorporation of the Bick Report into the

Anandkumar Report, for substantially the same reasons articulated,

supra, the Court finds nothing to preclude its incorporation. Like

Bick, who reviewed the Pepper Report when creating his Report,

here, too, Dr. Anandkumar, reviewed the Pepper Report; he also

reviewed the more-recent Skipworth Report, which was based upon

inspecting the same areas of the Facilities as inspected by Pepper.

(See Anandkumar Report at ECF p.3.) Of course, Dr. Anandkumar

reviewed the Bick Report. (See id.) Moreover, like Dr. Bick, Dr.

Anandkumar did not review individual inmate health records. (See

id. at ECF P. 4.) In this regard, once more, Dr. Anandkumar’s

approach to his Report is consistent with that of Dr. Bick. (Cf.

Bick Report at 4.) Said review was sufficient for Dr. Anandkumar

to familiarize himself regarding the basis for Bick’s findings;

the County does not explain how failing to review deposition

transcripts of three Named Plaintiffs curtailed Dr. Anandkumar’s

familiarization; nor does the Court find this to have a significant

or determinative impact on said familiarization. (See Reply at 4;

compare Bick Report at 3.)

Furthermore, as to Bick’s purported reliance “upon

hearsay statements made by fifteen unidentified (15) inmates who

reported sightings of rodents and rodent feces rather than Dr.

Pepper’s observations” (see id. at 3), said reliance is misplaced.

In the subsection entitled “Vermin Control”, Bick stated, inter

alia:

Rats, mice, and insects proliferate in

unsanitary conditions and can transmit

numerous infectious diseases. (15) Inmates at

both Riverhead and Yaphank facilities report

frequent sightings of cockroaches, rodents and

rodent feces. Sanitary inspections identified

flies breeding and living in the heavy organic

matter buildup . . . .

(Bick Report at 8.) Reviewing the Bick Report holistically, one

observes parenthetical numbers, in sequential order from “(1)”

through “(18)”, throughout the Report. (See Bick Report, in toto.)

Given this series of parenthetical numbers, it is clear the “(15)”

in the text, above, is not a modifier of “Inmates”. Rather, the

Court surmises, having reviewed the placement of these numbers,

each was meant to identify an endnote, notwithstanding none are

included in the filed Bick Report. Yet, this is not enough to

preclude Dr. Anandkumar’s reliance on the Bick Report.

Nonetheless, to avoid any prejudice or confusion, the

Court is precluding Dr. Anandkumar from testifying to a portion of

his Report found in the subsection entitled “Rodents and Flies”.

Dr. Anandkumar’s “Rodents and Flies” subsection is broken down

into two categories: “Findings” and “Risk for Inmates.” (-Se-e-

(Anandkumar Report at ECF p.13 (re: “Findings”), and at ECF p.14

(re: “Risk for Inmates”).) In the “Risk for Inmates” portion, Dr.

Anandkumar states his opinions, including:

Dr. Joseph Bick’s 2017 medical report

highlighted significant health risks stemming

from unsanitary conditions, including the

proliferation of rodents and insects and the

presence of rodent feces and fly breeding

grounds. These conditions facilitate the

transmission of various diseases, such as

salmonellosis, leptospirosis, rat-bite fever,

and murine typhus, through direct contact with

rodents or their waste or indirectly through

vectors like flies.

(Anandkumar Report at ECF p.14 (Rodents and Flies: Risk for

Inmates, (unnumbered) ¶3 (hereafter, the “Paragraph 3 Opinion”)).)

Because it is unclear whether Bick’s opinion regarding the

“proliferation of rodents and insects” was improperly based upon

an isolated incident of hearsay, i.e., the inmates’ reports, Dr.

Anandkumar is precluded from testifying to the contents of the

Paragraph 3 Opinion. In all other respects, Dr. Anandkumar may

rely upon the Bick’s Report.5

b. The Pepper Photos

As the Second Circuit has explained:

The bar for authentication of evidence is not

particularly high. United States v. Dhinsa,

243 F.3d 635, 658 (2d Cir.2001). “The

requirement of authentication . . . is

satisfied by evidence sufficient to support a

finding that the matter in question is what

its proponent claims.” FED. R. EVID. 901(a).

Generally, a document is properly

authenticated if a reasonable juror could find

in favor of authenticity. United States v.

Tin Yat Chin, 371 F.3d 31, 38 (2d Cir. 2004).

The proponent need not “rule out all

possibilities inconsistent with authenticity,

or to prove beyond any doubt that the evidence

is what it purports to be.” United States v.

Pluta, 176 F.3d 43, 49 (2d Cir. 1999)

(internal quotation marks and citation

omitted).

United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007); see

also United States v. Vayner, 769 F.3d 125, 129-30 (discussing the

requirements for authentication). “[T]he standard for

authentication is one of ‘reasonable likelihood’.” Gagliardi, 506

F.3d at 151 (quoting Pluta).

5 For thoroughness: The County will not be heard to complain Bick

was not subject to cross-examination when it chose not to depose

him, but had the opportunity to do so. That, too, fails as a

reason to preclude Dr. Anandkumar from using the Bick Report.

Here, there are no claims by the County that the photos

have been tampered. In addition, in his deposition, Pepper, the

person who took the photos, testified he included all the

approximate 100 photos he took, both the “good’ ones and “bad”

ones. He further testified that he saved all the photos on the

disk in his digital camera and to his computer. The Court finds

the fact Pepper could not recall the exact number of photographs

he took, providing an estimation instead, to be of no consequence.

(See Pepper Dep. Tr., ECF No. 637-2, at 199, attached to Opp’n

Decl.) What is of import is that Pepper testified to including

them all in his 2017 Report, i.e., he did not “cherry-pick” those

of the best quality, but, rather, produced the full array of

photos. (See id. at 201-202.) This weighs in favor of finding a

lack of tampering. Moreover, and significantly, the County’s

expert, Balsamo, relied upon Pepper’s photos in his own rebuttal

Report (see 2017 Balsamo Report at 7); Balsamo did not raise any

issues with the photos. This, too, lends credence to finding the

photos are what they claim to represent. See, e.g., United States

v. Al-Moayad, 545 F.3d 139, 172 (2d Cir. 2008) (“[P]roof of

authentication may be direct or circumstantial.”); compare FRE

901(b) (providing a list of examples, which is “not a complete

list—of evidence that satisfies” FRE 901(a)). Indeed, considering

Pepper was accompanied by, inter alia, the County’s attorney during

his 2017 inspection of the Facilities (see 2017 Pepper Report at

2.), the Court is hard-pressed to conclude Pepper would engage in

tampering his photos when, under such a scenario, such tampering

could easily be challenged. In sum, the Court finds, based upon

these combined considerations, there is sufficient proof here that

a reasonable juror could find the photos are authentic. See FRE

901(a); Vayner, 769 F.3d at 130. And, of course:

after the proponent of the evidence has

adduced sufficient evidence to support a

finding that the proffered evidence is what it

is claimed to be, the opposing party “remains

free to challenge the reliability of the

evidence, to minimize its importance, or to

argue alternative interpretations of its

meaning, but these and similar other

challenges go to the weight of the evidence—

not to its admissibility.”

Id. at 131 (quoting Tin Yat Chin, 371 F.3d at 38; emphasis in Tin

Yat Chin)). Therefore, this portion of the Pepper/Bick MIL is

DENIED.

B. The Williams/Boyle MIL6

1. The County’s Position

The County seeks to preclude Kenneth Williams from

testifying on the basis that when he moved to be an additional

6 Since the Plaintiffs’ current List of Witnesses (ECF No. 691)

does not include Michael Boyle or Kenneth J. Williams, thereby

mooting the County’s request that they be precluded from

testifying, this subsection addresses only the County’s request to

preclude Kenneth Williams from testifying at trial. (See also

Opp’n at 8 (“Plaintiffs do not list Kenneth J. Williams or Michael

Boyle as trial witnesses on the parties’ Joint Pretrial Order and

do not otherwise intend to call them.”).)

Class Representative, although he had submitted a grievance while

incarcerated, his affidavit (see ECF No. 505) submitted in support

of the Plaintiffs’ Substitution Motion (ECF No. 500), did not

accurately describe the grievances he filed. (See Support Memo at

7-8.) Rather, the grievances described in the subject affidavit

were filed by a similarly named inmate, with this discrepancy

coming to light during Kenneth Williams’ January 2024 deposition.

(See id. at 8.) Because it did not know Kenneth Williams’ true

identity, the County argues, it was unable to adequately prepare

for the deposition and the information revealed during the

deposition “is insufficient to allow the County to prepare for

trial testimony.” (Id.) The County further pressed the position

that Kenneth Williams “signed a declaration that was not accurate.”

(Id.) It asks the Court to bar Kenneth Williams from testifying

to “protect the integrity of the trial.” (Id.)

2. Plaintiffs’ Position

Plaintiffs maintain the County was able to, and did,

depose Kenneth Williams “after Plaintiffs provided notice of an

inadvertent mistake as to his identity.” (Opp’n at 8; see also

id. at 9 and note 2.) Moreover, they assert “there are no

misrepresentations” in his affidavit submitted in support of

Plaintiffs’ Substitution Motion. (Id.; see also, e.g., Opp’n

Decl., ¶5(c).)

3. The Court’s Ruling

Whether or not the County had advanced notice of Kenneth

Williams’ mistaken identity (see, e.g., Opp’n at 9 n.2, and

citations therein), the County has had at least six months –- since

his January 2024 deposition -- to seek corrective or follow-up

discovery regarding Kenneth Williams before the deadline for

supplemental discovery expired. For whatever reason, it did not

do so. (See id. at 9; see also Opp’n Decl., ¶14.) Thus, any claim

by the County that it is prejudiced by surprise is attenuated, at

best. The Court will not countenance the County having sat on its

rights during that more-than-adequate time period.

Moreover, the County is free to question Kenneth

Williams about the content of the affidavit he signed versus the

grievances he filed while housed in the Facilities. It seems

readily apparent this issue of alleged inconsistency goes to the

truthfulness and credibility of Plaintiffs’ Witness and not-—as

the County argues--the integrity of the trial. Thus, the

Williams/Boyle MIL is DENIED.

C. The Grievances MIL

1. The County’s Position

To the extent Plaintiffs seek to use their grievances to

show the complained-of conditions-of-confinement actually existed,

the County maintains the grievances are hearsay, since, in that

context, they are being used to establish the truth of the matter

asserted. (See id. at 9 (citing FRE 801 & FRE 802).) In addition,

“[f]or grievances filed by non-testifying class members, the

County will not have the opportunity to cross-examine the

individuals who made these statements,” presumably implying

prejudice to it. (See id.) However, recognizing the grievances

may be admissible for other purposes, and seemingly reserving its

right to do so, the County contends it may use the grievances for

rebuttal purposes if the Plaintiffs put on evidence regarding

claims they were prevented from grieving. (See id. at 10.) The

County does not clearly request any relief in this section of its

Omnibus MIL.

2. Plaintiffs’ Position

In opposition, Plaintiffs contend they should be

permitted to submit any grievances filed by Class Members since

they are admissible as business records of the SCCF. (See Opp’n

at 11 (citing FRE 803(6)).) Alternatively, Plaintiffs maintain,

“depending on individual circumstances, grievances may be

admissible to prove the conditions as statements against a party’s

interest, as present sense impressions, statements of the

declarant’s then-existing mental, emotional, or physical

condition, or as recorded recollections.” (Id. (stating further

“grievances are otherwise admissible for purposes to which the

rule against hearsay does not apply”); see also id. at 12 (citing

FRE 801(d)(2) (re: statement against interest); FRE 803(1) (re:

present sense impressions); FRE 803(3)7 (re: statement of

declarant’s then-existing mental, emotional, or physical

condition); and FRE 803(5) (re: recorded recollections).)

3. The County’s Reply

As to Plaintiffs’ FRE 803(6) arguments regarding

business records, the County counters the grievances cannot be

considered business records since inmates do not have a business

duty to file grievances. (Reply at 8-9.) In support of its

position, the County puts forth a case from the Northern District

of New York, Hill v. County of Montgomery, No. 14-CV-0933, 2020 WL

819225 (N.D.N.Y. Feb. 19, 2020). (See id.; see also id. at 9

(citing Jordan v. Van Winkle, No. 3:04-CV-0647, 2006 WL 2925657,

at *3 (N.D. Ind. Oct. 6, 2006) (rejecting argument that grievance

forms are admissible under Rule 803(6); stating “business records

exception does not reach so far” because “[a]lthough the prison

system plainly keeps grievance forms received from inmates in the

regular course of business, the portion filled out by the inmate

is neither made nor reported by a person with a business duty to

do so”)).)

As to Plaintiffs’ arguments premised upon FRE 803(1),

FRE 803(3), and FRE 803(5), the County asserts, whether any of the

7 As the County correctly notes, Plaintiffs inadvertently cited

to FRE 803(4) (see Reply at 9 n.2), which the Court presumes to be

a scrivener’s error.

specific exceptions apply is context-specific, thereby requiring

Plaintiffs to lay a foundation for any specific statement sought

to be offered into evidence. (See id. at 9.) It relies upon

another Northern District case in support of this argument, i.e.,

Williams v. O’Gorman, No. 9:20-CV-1417, 2024 WL 4120440 (N.D.N.Y.

Sept. 9, 2024); in that case, the district court “reserve[d]

judgment on any grievances or portions thereof sought to be

admitted for trial under these provisions.” (Id. at 9-10 (quoting

Williams, 2024 WL 4120440, at *4).) The County maintains that, if

Plaintiffs seek to introduce the grievances for purposes other

than as evidence of conditions at the Facilities, Plaintiffs must

be able to satisfy laying the proper foundation required by the

FRE invoked and, then, if a grievance is admitted, an appropriate

limiting instruction should be issued. (See id. at 11.)

4. The Court’s Ruling

As an initial matter, the Court acknowledges grievance

forms have portions filled out by inmates and portions for

Facilities’ personal to respond. (See, e.g., Opp’n at 11-12

(citing Ewald Dep. Tr., ECF No. 480-13, at 259-61).) To the extent

Plaintiffs seek to introduce grievances as evidence of the

conditions at the Facilities, the grievances are precluded as

hearsay. See Williams, 2024 WL 4120440, at *4 (“Plaintiff’s

statements in his grievances used to prove that Plaintiff

experienced the conditions described therein would be hearsay and

consequently inadmissible if offered by the Plaintiff.” (citing

FRE 802)).

To the extent Plaintiffs argue the grievances are

business records, the Court disagrees. Rather, this Court agrees

with the Hill Court: The inmates “were under no duty to submit

grievances to facility staff” regarding their complaints about the

conditions-of-confinement. Hill, 2020 WL 819225, at *2. Hence,

given the absence of this duty, the indicia for the trustworthiness

of the statements is also absent, thereby making them unreliable.

See id. In turn, Plaintiffs may not rely upon FRE 803(6) as a

hearsay exception to introduce the inmates’ portions of the

grievances.8 Thus, to the extent the County seeks the exclusion

of the grievances pursuant to FRE 803(6), that portion of the

Grievances MIL is GRANTED.

Regarding Plaintiffs advancing other hearsay exceptions,

i.e., FRE 803(1) (re: present sense impressions), FRE 803(3) (then-

existing mental, emotional, or physical conditions), and/or FRE

803(5) (re: recorded recollections), the Court agrees with the

Williams Court: “[T]he question of whether any of these specific

exceptions apply is context specific, and Plaintiff[s] must lay a

8 Because “[t]he County does not object to the admission of those

portions of grievance forms that include statements by County

employees indicating that a grievance was accepted or resolved”

(Reply at 9 n.1), Plaintiffs are not precluded from introducing

those identified portions of the grievances.

foundation for any specific statement or statements sought to be

offered into evidence.” Williams, 2024 WL 4120440, at *4 (cleaned

up). Therefore, the Court “reserve[s] judgment on any grievances

or portions thereof sought to be admitted for trial under these

provisions.” Id. (citation omitted).

To the extent Plaintiffs seek to introduce the

grievances to establish the County’s knowledge of the grievances

and complained-of conditions-of-confinement, the County concedes

“a grievance may be admissible to show the County was aware of

complaints about the conditions.” (Reply at 11.) If grievances

are admitted for such a purpose, the County request a limiting

instruction “cautioning the jury to consider the grievances only

on the issue of notice” be issued at the time said evidence is

introduced. (See id.) The Court will oblige the County: “[I]f

requested, [it] will issue a limiting instruction at the time of

introduction, and at the end of the case, cautioning the jury to

consider the grievances only on the issue of notice, and not for

the truth of the allegations in the grievances.” Hill, 2020 WL

819225, at *2.

D. The Procedures MIL

1. The County’s Position

The County seeks to preclude from evidence the length of

time from a requested budget requisition to action on the approved

requisition request. Thus, claiming irrelevance, the County

asserts its budget procedures and legislative processes are not

evidence of its deliberate indifference; therefore, such evidence

is not admissible. (See id. at 10 (citing FRE 402).) In support

of its position, the County relies upon a case out of the Western

District of Oklahoma, Burnett v. Fallin, in which the pro se

plaintiff brought an Eighth Amendment claim. (See id. at 11

(citing No. 17-CV-0385, 2018 WL 4376513 (W.D. Okla. June 5, 2018),

aff’d, 785 F. App’x 546 (10th Cir. 2019)).) It maintains:

[t]he alleged violations included that the

governor “refused to use discretionary funds

from revolving funds or ‘rainy day’ funds to

alleviate prison overcrowding,” dropping

planned funding, and delaying the

implementation of recommended reforms. The

court dismissed these claims, holding that the

defendant was “entitled to absolute

legislative immunity for actions of a

legislative nature, including budgetary

decisions.” The court explained that

defendants’ actions “reflected a

discretionary, policymaking decision

implicating the budgetary priorities of the

city and the services the city provides to its

constituents.”

(Id. (quoting Burnett, 2018 WL 4376513, at *2, and *3; further

citation omitted).) The County asserts the same holds true here:

“Because the County’s budget decisions are valid legislative

actions, they cannot form the basis of a claim.” (Id.) In turn,

the Court should not permit arguments based on budgets procedures

and legislative processes. (See id.)

The County advances further arguments of prejudice and

an extended trial. It claims the introduction of evidence

regarding its budgets and legislative processes would be unduly

prejudicial to it since such procedures and processes are

“necessarily political” and “could be inflammatory”. (Id. at 11.)

Moreover, introducing such evidence will force the County to

introduce its own evidence to explain “how budget requisitions for

capital projects work and why this requisition took as long as it

did,” which “will significantly lengthen the trial and could

confuse the jury.” (Id.)

2. Plaintiffs’ Position

In opposition, Plaintiffs state: “Evidence concerning

the County legislature’s knowledge and awareness of the inhumane

conditions at the SCCF, and steps taken or not taken to address

those conditions, including through the budgetary process, is

directly relevant to Plaintiffs’ claims.” (Opp’n at 13.)

According to Plaintiffs, this relevant evidence goes to the heart

of the County’s deliberate indifference. (See id. at 13-14 and

note 4 (citing summary judgment record evidence of County’s budget

and legislative process which “demonstrates the County’s knowledge

of, and lack of response to, the hazardous conditions at the

SCCF”).) Moreover, Plaintiffs would have the Court reject the

County’s immunity argument since Second Circuit precedent is

clear: “[T]here is no immunity defense, either qualified or

absolute, available to a municipality sought to be held liable

under 42 U.S.C. § 1983.” (Id. at 14 (quoting Goldberg v. Town of

Rocky Hill, 973 F.2d 70, 74 (2d Cir. 1992)); see also id. (arguing

the non-binding precedent cited by the County “stand[s] only for

the limited proposition that individuals—as opposed to

municipalities like the County—may be entitled to legislative

immunity from Section 1983 liability for certain legislative

actions”).) Finally, Plaintiffs contend the County’s “political”

and “inflammatory” arguments are “nonsensical and unsupported by

any authority”; instead, “[s]hielding juries from relevant matters

involving legislative actions because they are political would

essentially confer immunity upon municipalities,” amounting to “an

end-run around Monell”. (Id. at 15.)

3. The Court’s Ruling

The Court finds unavailing the County’s arguments

advanced in support of its Procedures MIL. As an initial matter,

the Court rejects, out-of-hand, the County’s reliance on the non-

binding Burnett case, which is inapposite to controlling Second

Circuit law. Second, as persuasively argued by Plaintiffs,

evidence of the budgetary and legislative processes goes to the

issue of the County’s knowledge; it is disingenuous to claim these

conjunctive processes do not have a tendency to address the

County’s knowledge of, and response to, the complained-of

conditions-of-confinement. Indeed, contrary to the County’s

stance, as Plaintiffs argue, these interdependent processes go to

the heart of the County’s deliberate indifference, making them

highly relevant. See FRE 401, FRE 402.

Third, the County’s assertion of prejudice as a basis

for exclusion, see FRE 403, because of the political nature of the

budgetary and legislative processes is without merit. It is not

unknown that these processes are often long and, to a certain

extent, can be outside of the control of parties seeking

requisitions. Therefore, the County’s claim of juror confusion

rings hollow. See FRE 403. And, in any event, a limiting

instruction to that affect can be proffered for the Court’s

consideration. More important, it appears Plaintiffs’ position is

more nuanced, i.e., that in seeking to establish the County’s

deliberate indifference, it seeks to introduce evidence showing

multiple, repeated requests for funding, based upon the same,

repeated issues and concerns. In sum, the County has not

established the “political” nature of the budgetary and

legislative processes is more prejudicial to it than relevant to

Plaintiffs’ in establishing the County’s alleged deliberate

indifference. Hence, this MIL is DENIED.

E. The Diseases-Not-Suffered MIL

1. The County’s Position

The County would further have the Court preclude

Plaintiffs’ medical expert, Dr. Anandkumar, from testifying about

diseases referenced in his Report as to which none of the Class

Members have been diagnosed (hereafter, the “Diseases-Not-

Suffered”). (See Support Memo at 12.) In support of this

position, the County calls to attention: Plaintiffs have not

produced medical records for any Class Members; no Class Member

has had an independent medical exam; and, Dr. Anandkumar has

neither examined any Class Member nor reviewed their medical

records. (See id. (quoting Anandkumar Report at 3).) What is

more, Dr. Anandkumar fails to cite “any sources for his claims”

that the Diseases-Not-Suffered “can be caused by the alleged

conditions.” (Id.) Nonetheless, Dr. Anandkumar lists seven “Areas

of Concern”, exposure to which, he contends, poses risks of

contracting various of the Diseases-Not-Suffered. (Id.; see also

id. at 12-13 (listing various diseases and health conditions which

comprise the Diseases-Not-Suffered).)

In raising this objection, the County maintains the

introduction of Diseases-Not-Suffered by inmates is irrelevant and

unfairly prejudicial. More specifically, as to relevance,

according to the County, “it is not relevant that some

environmental conditions could allegedly cause that disease in

some circumstances.” (Id. (citing FRE 402).) And, as to

prejudice, “references to these diseases would be unfairly

prejudicial to the County by painting a false picture of an

extremely sick inmate population.” (Id. (“Allowing Dr. Anandkumar

to discuss these illnesses would unfairly create the image that

[the] County’s prisons are third world countries . . . .”).)

Therefore, pursuant to FRE 403, references to and arguments based

upon diseases not suffered should be barred. (See id. citing FRE

403); see also id. at 14 (relying upon FRE 403 to further assert

introduction of Diseases-Not-Suffered would also “waste time and

confuse the jury”).)

2. Plaintiffs’ Position

Plaintiffs counter, in essence, that the County misses

the mark:

In order to establish the County’s liability

for violations of the Eighth and Fourteenth

Amendments’ prohibitions against cruel and

unusual punishment, Plaintiffs must prove only

that the conditions in the SCCF present a

substantial risk of serious harm--exposure is

sufficient, and class members need not have

actually been diagnosed with the particular

diseases.

(Opp’n at 15.)

3. The Court’s Ruling

Plaintiffs are correct in framing one of the issues they

need to establish, i.e., a “substantial” or “excessive” risk to

the health or safety of the inmates caused by the complained-of

conditions-of-confinement. See Summary Judgment Order, 2023 WL

5096218, at *31-32. That also is the framework for deciding this

MIL. Thus, as Plaintiffs argue:

[t]he specific diseases that can be caused by

exposure to the conditions in the jails (as

distinguished from proof that a class member

had those diseases) are relevant to

establishing the risk to which class members

were exposed and the harm that class members

could have suffered as a result.

(Opp’n at 16.) The Court agrees; it is the level of risk to

exposure that is at issue. Therefore, testimony regarding diseases

to which inmates may be potentially exposed, i.e., the Diseases-

Not-Suffered, is an appropriate line of questioning in this

instance. See FRE 401; FRE 402. It is a precursor, because in

the absence of the presence of a risk, there is no need to inquire

about the level or extent of said risk.

The County’s objections are more properly directed to

the weight of the evidence. In that vein, on cross-examination,

the County is free to question Dr. Anandkumar regarding his

opinions on the likelihood of the inmates contracting any of the

various diseases he has identified in his Report. Whether the

risk or likelihood is substantial or excessive is a question for

the jury to determine. Moreover, the Parties are free to stipulate

that, as to the Diseases-Not-Suffered, no Class Members have

contracted them. (That issue is distinct from deciding the risk

level to the inmates, if any, of such expose, which is an issue

for the jury to decide.) Such an approach would certainly assuage

the County’s concerns regarding time, i.e., increasing the length

of the trial, and regarding confusing the jury. Accordingly,

because determining whether being exposed to Diseases-Not-Suffered

is relevant to deciding whether the County is liable to Plaintiffs

for Eighth and Fourteenth Amendment violations, the Diseases-Not-

Suffered MIL id DENIED.

F. The Daubert MIL

1. The County’s Position

In addition to its specific disagreement with Dr.

Anandkumar’s Report (see supra, DISCUSION, Part II(E)), more

broadly, the County seeks the preclusion of the entire Anandkumar

Report, arguing it does not rest on a reliable foundation and is

not relevant to the task at hand. (See id. at 14 (citing FRE 701,

FRE 702, and Daubert, 509 U.S. 579).) It faults the Anandkumar

Report since: (a) Dr. Anandkumar did not engage in the generally

accepted method for determining whether an individual has a disease

by not conducting any physical examines of inmates or, even,

reviewing their medical records; and (b) barely citing any “sources

for his claims that the alleged conditions could cause certain

diseases and [not addressing] the likelihood that the condition

could cause the disease or the prevalence of such diseases amongst

people exposed to the alleged conditions.” (Id. at 14-15.) It

perfunctorily contends the Anandkumar Report does not meet the

other Daubert factors and requests Dr. Anandkumar be precluded

from testifying. (See id. at 15.)

2. Plaintiffs’ Position

In their Opposition, Plaintiffs note Dr. Anandkumar was

asked to provide his expert opinion “on the potential health

consequences of the conditions documented within the Suffolk

County jails at Riverhead and Yaphank”, and that he “will provide

his expert opinion on the health risks to class members caused by

exposure to the conditions in the SCCF.” (Opp’n at 17 and note

7.) Plaintiffs maintain, pursuant to Daubert, this kind of

testimony, i.e., testimony of medical experts, “regarding the

health risks arising from living conditions is just the sort of

expert testimony frequently allowed by courts.” (Id. at 18

(collecting cases).) Moreover, “Dr. Anandkumar’s proposed

testimony meets the Rule 702 and Daubert standards because it ‘both

rests on a reliable foundation and is relevant to the task at

hand.’” (Id. at 19 (quoting Daubert, 509 U.S. at 597).) In that

vein, Plaintiffs assert Dr. Anandkumar is well-qualified given his

prior correctional-facilities-related experiences, together with

his medial training, both of which he can properly draw upon in

rendering an opinion. (See id. at 19 (citing several cases in

which Dr. Anandkumar was appointed “medical expert charged with

monitoring efforts to improve jail conditions”); see also id. at

20 (citing cases for proposition that doctor can qualify as an

expert based upon experience and reviewing relevant scientific

literature).) Finally, Plaintiffs assert the County’s contention

regarding Dr. Anandkumar’s failure to examine inmates is of no

consequence since he “has not purported to diagnose any class

member’s disease”; instead “he has assessed the risk of disease

posed by conditions in the SCCF, an assessment that does not

require examining any particular class member’s medical records.”

(Id. at 20 (citation omitted).)

3. The Court’s Ruling

The County does not challenge Dr. Anandkumar’s

qualifications, which it would be hard-pressed to do. (See Opp’n

at 17 (providing Dr. Anandkumar’s qualifications).) Rather, it

tries to conflate two issues: the purported need to examine the

inmates and assessing the risk to inmates of being exposed to the

complained-of conditions-of-confinement. That will not do; the

two issues are distinct. The issue for which Dr. Anandkumar’s

expert testimony is being offered, i.e., assessing the risk of

exposure to the conditions-of-confinement at the Facilities, has

no bearing on inmates’ medical examinations. Therefore, the

County’s reliance on the lack of medical examinations of inmates

by Dr. Anandkumar as a basis to preclude his testimony is

misplaced. See, e.g., Cody v. City of St. Louis, No. 4:17-CV-

2707, 2022 WL 2315473, at *6 (E.D. Mo. June 28, 2022).9 Indeed,

as the Cody Court stated:

9 Ironically, in Cody, the plaintiffs proffered James Balsamo—the

County’s proffered expert in this Action—“to opine on the medical

Rule 702 “is one of admissibility rather than

exclusion.” Shuck [v. CNH Am., LLC], 498 F.3d

[868,] 874 [(8th Cir. 2007)] (citation

omitted). “Vigorous cross-examination,

presentation of contrary evidence, and careful

instruction on the burden of proof are the

traditional and appropriate means of attacking

shaky but admissible evidence.” Olson v. Ford

Motor Co., 481 F.3d 619, 626 (8th Cir. 2007)

(quoting Daubert, 509 U.S. at 596). Proposed

expert testimony “must be supported by

appropriate validation - i.e., good grounds,

based on what is known”; expert “knowledge

connotes more than subjective belief or

unsupported speculation.” Daubert, 509 U.S.

at 590 (citation omitted). But any “doubts

regarding whether an expert’s testimony will

be useful should generally be resolved in

favor of admissibility.” Clark v. Heidrick,

150 F.3d 912, 915 (8th Cir. 1998) (citation

omitted).

Id. at *5. The Cody Court’s reasoning is persuasive, and the

Court adopts it herein. Therefore, the County’s Daubert MIL is

DENIED.

[Proceed to next page.]

risk posed by the facility conditions”, to which the city defendant

objected, arguing Balsamo’s opinions, i.e., the opinions of a non-

medical-individual, “are based on assumptions not supported by

adequate data”. 2022 WL 2315473, at *4. The County raises,

essentially, the same objection here. (See, e.g., Reply at 14

(arguing Dr. Anandkumar’s “opinions amount to little more than

speculation”).) While the Cody Court did exclude a portion of

Balsamo’s findings, it permitted the balance of his opinions to be

admitted, which were based upon his “extensive experience in public

and environmental health” and “which are focused on risks to the

health and safety of the inmate population generally rather than

medical diagnoses or causation in particular cases.” Id. at *6.

***

To the extent the Court has not explicitly ruled on a

portion of the County’s Omnibus Motion, it is denied without

prejudice to renew at trial, if warranted.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that the County’s

Omnibus MIL Motion (ECF No. 609) is GRANTED in part and DENIED in

part. Hence, as to the following designated MILs, which comprise

this Omnibus MIL:

I. the Pepper/Bick MIL is GRANTED in part and DENIED in part,

such that:

A. As to the Pepper Report, Plaintiffs’ replacement

experts may rely upon the Pepper Report;

B. As to the Bick Report, other than the Paragraph 3 Opinion

in the “Rodents and Flies” subsection of the

Anandkumar Report, which refers to the Bick Report, the

Bick Report may be relied upon by Dr. Anandkumar; and

C. As to the Pepper Photos, Plaintiffs may rely upon them;

II. the Williams/Boyle MIL is DENIED;

III. the Grievances MIL is GRANTED in part and DENIED in part; the

grievances are not admissible as business records exception, see

FRE 803(6); to the extent the Court reserves decision regarding

Plaintiffs’ seeking to introduce the grievances pursuant to

FRE 803(1), FRE 803(3), and/or FRE 803(5), for administrative

purposes, the MIL is DENIED. However, said denial is without

prejudice. If Plaintiffs seek to admit such evidence pursuant to

the FREs identified supra, after hearing the Parties’ arguments,

the Court will render its ruling(s). Finally, if warranted and

the County so requests, the Court will issue a limiting instruction

cautioning the jury to consider the grievances only on the issue

of notice;

IV. the Procedures MIL is DENIED;

V. the Diseases-Not-Suffered MIL is DENIED; and

VI. the Daubert MIL is DENIED.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: February 6, 2025

Central Islip, New York