The opinion of the court was delivered by: Honorable RENÉE Marie Bumb
Defendant seeks to exclude the testimony of Plaintiff's treating physician, Dr. Manish Singh, based on Plaintiff's failure to produce a report or accompanying documents as required by Fed.R.Civ.P. 26(a)(2)(B). Plaintiff seeks to exclude evidence that he was drinking and/or intoxicated, that a second pocket knife was found on his person at the police station and the admission of a videotape taken at the police station ("the booking tape"). For the reasons set forth on the record on March 15, 2010, when the Court decided the motions, and more specifically set forth below, the motions are granted in part and denied in part.
Plaintiff alleges that during the course of his September 2004 arrest in Wildwood, New Jersey, Sergeant Christopher Howard*fn1 used excessive force.
A. The Incident at Fairview Café
On the early morning of September 14, 2004, Plaintiff was escorted out of the Fairview Café after Plaintiff pulled out a pocketknife, allegedly in self-defense, during a dispute with another patron. See Amended Opinion Granting Summ. J., June 3, 2008 at 2. Plaintiff alleges that the dispute arose over a spilled drink. Id.
Once outside, Plaintiff turned over the knife to Patrolman Kenneth Phillips upon the officer's request. Id. Defendant, Sergeant Christopher Howard, arrived at the scene, discussed the incident with Phillips and informed Plaintiff that he was under arrest. Id. Plaintiff alleges that an altercation broke out between himself and Sergeant Howard, which forms the basis for Plaintiff's excessive force claim.
B. Plaintiff's Allegations of Excessive Force
Plaintiff alleges that he was attempting to comply with Sergeant Howard's instructions when, "[Sergeant] Howard, without cause or provocation, slammed the Plaintiff to the ground, causing him to hit the concrete face first." See Joint Final Pre-Trial Order at 3. "As a result of hitting the concrete face first, the Plaintiff was rendered momentarily unconscious." Id. "While on the ground, without provocation or cause, Sergeant Howard hit Plaintiff in the face." Id.
C. Sergeant Howard's Testimony Regarding the Incident
Regarding the incident, Sergeant Howard testified at deposition that he "didn't know if [Plaintiff] had a weapon or not." Howard Dep. 55:4-5, June 28, 2007. He further testified that
[Plaintiff] put his hands in his pocket, his pants pocket, and I ordered him to take his hands out of his pocket and he wouldn't. I told him again that he was under arrest and we went back and forth in that way for a minute or two. When it became clear [Plaintiff] was not going to change his frame of mind and we were wasting our time and my arm had been hit out of the way, I reached out and grabbed [Plaintiff] by the collar of his jacket or his tie and pulled him away from the window and we both went to the ground.
Sergeant Howard intends to show that "[w]hile on the ground, the Plaintiff was striking and flailing his arms at anything in the area, including [Sergeant] Howard and Officer [Kevin] Franchville, who were attempting to handcuff the Plaintiff." See Pre-Trial Order at 5. "[Sergeant] Howard punched the Plaintiff one time in the head or face in order to get the Plaintiff under control." Id. The bouncer, Joseph Giandonato, "saw that the Plaintiff was bleeding from his nose" and saw that "the Officers were trying to handcuff him." Id.
D. The Second Pocket Knife
The parties do not dispute that prior to being arrested, Plaintiff voluntarily turned over a pocketknife to the Wildwood police. See Pre-Trial Order at 2. Plaintiff concedes that "[t]here is . . . no dispute that after the arrest, another small pocketknife was found on the Plaintiff." Pl. Motion in Limine Br. at 1. The parties also stipulated that "[p]laintiff was in possession of two (2) knives when he entered the Fairview Café." Pre-Trial Order at 2. Sergeant Howard intends to show that "[a]t the Police Station, a second knife was found in the Plaintiff's shirt pocket. It was a pocketknife which was open with an approximate three (3") inch blade." See Pre-Trial Order at 5.
E. The Video at the Police Station
A video was taken of the Plaintiff at the police station. Defendant asserts that "there are portions of the booking tape which show the Plaintiff banging his head against a cement wall which could explain some of the Plaintiff's alleged injuries." Def. Opp Br. at 5. Defendant intends to offer the video to show that "[w]hile in the booking room, the ...