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Lopez v. Mulligan

United States District Court, D. New Jersey

December 7, 2017

JAMES G. LOPEZ, Plaintiff,

          OPINION & ORDER

          STANLEY R. CHESLER United States District Judge

         This matter comes before the Court upon Defendants' filing of eight motions in limine (Docket Nos. 130-137). The Court has reviewed the parties' submissions and proceeds to rule without oral argument. See Fed.R.Civ.P. 78(b). For the reasons set forth below, Defendants' motion to bar testimony relating to Plaintiff's shoulder injury (Docket No. 130) is granted, Defendants' motion to bar testimony by Ms. Watson (Docket No. 131) is granted in part and denied in part, Defendants' motion to bar the expert report issued by Dr. Chen (Docket No. 132) is granted, Defendants' motion to exclude testimony mentioning an internal affairs investigation (Docket No. 133) is granted in part and denied in part, Defendants' motion to bar Plaintiff from wearing a hand brace (Docket No. 134) is denied without prejudice, Defendants' motion to bar testimony that alleges a pretextual motor vehicle stop (Docket No. 135) is granted, Defendants' motion to bar medical records and reports not disclosed in discovery (Docket No. 136) is granted, and Defendants' motion to have the court decide the issue of qualified immunity (Docket No. 137) is granted in part and denied in part.

         I. BACKGROUND

         This case arises from a motor vehicle stop of Plaintiff James G. Lopez, on April 8, 2011, which was conducted by Defendant Plainfield police officers Joseph Mulligan and Kevin O'Brien. Plaintiff's amended complaint contains one count under 42 United States Code §1983 for unreasonable and excessive force and unlawful searches in violation of the United States Constitution.

         Plaintiff alleges that the Plainfield officers stopped his vehicle because they observed that a known drug dealer had entered the car, while Defendants argue that the vehicle was stopped for failure to use a turn signal. After he noticed a smell of marijuana emanating from the vehicle, Defendant Officer O'Brien ordered Plaintiff to exit his vehicle. Plaintiff alleges that Officer O'Brien injured his right shoulder and left hand while pulling Plaintiff out of the car and handcuffing him during the ensuing arrest.

         The amended complaint no longer includes any counts related to a second motor vehicle stop of Plaintiff in 2013, which previously formed the basis of additional counts in the original complaint. After the 2011 vehicle stop, Plaintiff filed a complaint with the Plainfield Police Division of Internal Affairs. In January 2012, Internal Affairs notified Plaintiff that the investigation failed to sufficiently prove or disprove his allegations. In 2013, the Plainfield Police Department set up surveillance of Plaintiff after receiving a tip from a confidential information that Plaintiff was distributing and supplying illegal narcotics. During this time, the confidential informant purchased suspected narcotics in a hand-to-hand exchange from Plaintiff. During this surveillance, the Plainfield police observed Plaintiff pick up individuals in his car, and place a small item that he received from one of these individuals into his trunk. Plaintiff was subsequently pulled over, and consented to a K-9 vehicle search, which yielded no contraband.

         Plaintiff alleges that he has never distributed drugs, and that this investigation was initiated by Defendants in retaliation for the lawsuit that Plaintiff had filed. In his previous complaint, Plaintiff argued that both the stop and the search of his vehicle were illegal.

         On August 9, 2017, Magistrate Judge Cathy Waldor entered a final pretrial order and on September 8, 2017, Defendants filed the eight motions in limine. Plaintiff has not opposed these eight motions, despite the Court twice granting orders to reset the reply deadlines to allow for Plaintiff to respond.[1] Despite each motion being unopposed, the Court will nevertheless examine each motion in limine on its merits.


         a. Motion To Bar Testimony Relating To Plaintiff's Shoulder Injury (Docket No. 130)

         Defendants have submitted a motion in limine to “bar Plaintiff from presenting any evidence or testimony concerning Plaintiff's alleged permanent shoulder injury, as there is no documentation, treatment or evidence regarding said injury.” (Docket No. 130-1, 2.) On April 9, 2011, Plaintiff received an x-ray examination of his right shoulder. He subsequently underwent follow-up visits for the shoulder injury on June 20, 2011 and September 9, 2011. Plaintiff's discharge paperwork from Hunterdon Medical Center on October 25, 2011 does not refer to Plaintiff's shoulder. In his October 14, 2013 Answers to Interrogatories, Plaintiff states that his shoulder is permanently injured, although Plaintiff has not submitted documentation or medical records after 2011 that refer to the shoulder injury.

         Under the Federal Rules of Evidence, irrelevant evidence is not admissible. Fed. R. Evid. 402. Evidence is relevant if it “has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action.” Fed. R. Evid. 401. The court may exclude even relevant evidence, however, when its “probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Rule 403 requires that “the District Court engage in balancing to determine whether the probative value of the evidence is ‘substantially outweighed' by the negative factors listed in Rule 403.” Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343 (3d Cir. 2002). This balancing test requires a “cost/benefit analysis, ” as “relevance alone does not ensure its admissibility.” Id. at 1343.

         Testimony of a permanent shoulder injury would require a medical diagnosis and medical support, however Plaintiff has provided no documentation, medical records, or expert reports demonstrating that the shoulder injury has persisted beyond 2011. Reference or mention of the shoulder injury is conspicuously absent from Plaintiff's October 2011 discharge summary from Hunterdon Medical Center. Even prior to this discharge paperwork, Plaintiff's previous medical visits indicated an “unremarkable” right shoulder X-ray and a diagnosis of only “mild tenderness” in the shoulder.

         The Court is satisfied that under a Rule 403 balancing test, the prejudice against Plaintiff of barring testimony and evidence related to a permanent shoulder injury is minimal and is substantially outweighed by the risk of unfair prejudice to Defendants if such testimony were admitted. As such, this Court grants Defendants' motion in limine to exclude the introduction of evidence and testimony relating to the permanent nature of Plaintiff's shoulder injury.

         b. Motion To Bar Testimony By Ms. Watson (Docket No. 131)

         Defendants have submitted a motion in limine to bar “Plaintiff from introducing any testimony by Linda Watson, ” who is the psychotherapist who treated Plaintiff for the alleged physical and emotional injuries suffered as a direct result of Defendants' conduct.

         During discovery, Plaintiff provided Defendants with “Therapy Notes” for five sessions with Ms. Watson during 2015 (1/7/2015, 2/4/2015, 2/18/2015, 11/15/2015, and 12/17/2015). Before Plaintiff's deposition, Plaintiff did not provide any further medical bills or records relating to ongoing treatment by Ms. Watson, and some of the discharge paperwork appears to refer to Plaintiff's “treatment goals [having been] met” in 2015. At his deposition, Plaintiff did not disclose that he was receiving ongoing treatment from Ms. Watson, although he did state that he was undergoing treatment at Hunterdon Mental Health. During the deposition, Defendants requested updated medical records. More than two years after his deposition, Plaintiff provide Defendants a “receipt for services” bill for 18 additional sessions with Ms. Watson, on 11/12/2015, 12/15/2015, 1/7/2016, 2/4/2016, 2/18/2016, 4/14/2016, 5/5/2016, 6/2/2016, 6/30/2016, 7/21/2016, 8/11/2016, 9/8/2016, 10/21/2016, 11/17/2016, 12/29/2016, 2/220/17, 2/16/2017, and 3/2/2017. All of these sessions occurred after Plaintiff's deposition, and three sessions occurred in 2017.

         Under Federal Rule of Civil Procedure 26, a party must disclose certain information within discovery, including “the name . . . of each individual likely to have discoverable information” and copies “of all documents . . . that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A).

         Further, the party must supplement or corrects its disclosure responses “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). The failure to timely disclose discoverable information results in “the party is not [being] allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

         For the issue at bar, Plaintiff did not supplement or amend its disclosure dated April 26, 2016. As of this date, however, Plaintiff had undergone six treatments which it did not disclose to Defendants, namely sessions on 11/12/2015, 12/15/2015, 1/7/2016, 2/4/2016, 2/18/2016, and 4/14/2016. By failing to disclose this information, Plaintiff violated its discovery obligations under Rule 26(a). Further, Plaintiff did not amend its disclosures after April 26, 2016 to apprise Defendants of the twelve subsequent sessions with Ms. Watson. This failure to supplement the original disclosure violated Plaintiff's discovery obligations under Rule 26(e). As Rule 37 makes clear, such a failure to disclose or supplement bars a party from using such information at trial. Without adequate notice of such information, Defendants would be substantially prejudice under Federal Rule of Evidence 403 if such information were admitted. As such, this Court will grant in part Defendants' motion. Ms. Watson will be barred from testifying about any treatment, notes or expenses related to eighteen sessions listed in Plaintiff's billing statement on June 23, 2017. Instead, the Court will only permit Ms. Watson to testify regarding the five sessions in 2015 that were properly disclosed by Plaintiff to Defendants.

         c. Motion To Bar The Expert Report Issued By Dr. Chen (Docket No. 132)

         Defendants have submitted a motion in limine to “bar Plaintiff's expert report issued by Dr. Franklin Chen.” (Docket No. 132-1, 1.) A medical doctor at the Edison-Metuchen Orthopaedic Group specializing in hand and microsurgery, Dr. Chen issued two reports on behalf of Plaintiff: an ...

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