United States District Court, D. New Jersey
JAMES G. LOPEZ, Plaintiff,
JOSEPH MULLIGAN, and KEVIN O'BRIEN, Defendants.
OPINION & ORDER
STANLEY R. CHESLER United States District Judge
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.
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.
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.
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.
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.
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. Despite each motion being unopposed, the
Court will nevertheless examine each motion in limine on its
DEFENDANTS' EIGHT MOTIONS IN LIMINE
Motion To Bar Testimony Relating To Plaintiff's Shoulder
Injury (Docket No. 130)
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.
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.
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.
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.
Motion To Bar Testimony By Ms. Watson (Docket No.
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.
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
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).
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).
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
Motion To Bar The Expert Report Issued By Dr. Chen (Docket
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 ...