Rosario v. City of New York et al
| Richard Rosario |
| City Of New York, Gary Whitaker, Irwin Silverman, Charles Cruger, Joseph Fortunato, Richard Martinez and Edward J. Monks |
| 1:2018cv04023 |
| May 4, 2018 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Lorna G. Schofield |
| Other Civil Rights |
| 42 U.S.C. ยง 1983 |
| Defendant |
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Filing
525
OPINION AND ORDER: Adopting REPORT AND RECOMMENDATION: for 522 Report and Recommendation. For the foregoing reasons, the Objections are SUSTAINED in part and OVERRULED in part. The Report is ADOPTED as modified to award Plaintiff $3,677,086. 50 in attorneys' fees on the merits and $115,240 in fees for preparing the fee petition. When added to the Report's recommended $3,206.25 in travel fees, Plaintiff is awarded a total of $3,795,532.75 in fees, plus $213,011.75 in expenses. The Clerk of Court is respectfully directed close the motion at Dkt. No. 508. (Signed by Judge Lorna G. Schofield on 3/15/2023) (ama)
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Filing
481
ORDER FOR JUDGEMENT: It is hereby ORDERED that: 1. Judgment is entered in favor of Plaintiff and against Defendant Whitaker on Count II and Count VII, and against Defendant City of New York on Count X, in the amount of $5,000,000. 2. Judgment is entered in favor of Defendants Martinez and Cruger and against Plaintiff on Counts II and Count VII. 3. Judgment is entered in favor of Defendants Whitaker, Martinez and Cruger on Count III. 4. The Court retains jurisdiction over any matter pertaining to this Judgment. (Signed by Judge Lorna G. Schofield on 8/12/2022) (mml)
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Filing
470
ORDER re: 461 Letter filed by Richard Rosario. It is hereby ORDERED that the Court's rulings precluding references to certain bad acts also preclude Defendants from eliciting such evidence through any other witness, including Dr. Agharka r and Dr. Fayer. If Defendants intend to elicit such evidence, they shall seek prior permission from the Court in advance, and explain the basis for the request, other than simply reiterating their prior arguments. It is further ORDERED that Pla intiff's application to preclude Defendants from questioning any witness about the retainer agreement or attorneys' fees arrangement in this case as between Neufeld Scheck & Brustin, LLP and Plaintiff is GRANTED on the grounds of relevan ce and Federal Rule of Evidence 403. Plaintiff's fee arrangement with counsel is not relevant and may confuse or prejudice the jury, particularly with respect to any consideration of damages. Plaintiff shall disclose, orally to Defendants and to the Court prior to the beginning of trial on August 8, 2022, any fee arrangement such that Mr. Loewenson, Morrison Foerster, or any other person or entity would share in any recovery in this case. It is further ORDERED that Plaintiff's application to preclude questioning about Plaintiffs "litigation strategy" is denied without prejudice pending further clarification. The Court has already allowed Plaintiff to withhold from Defendants text messages between Plaintiff an d Mr. Loewenson concerning trial or settlement strategy on the basis of work product doctrine. Neither party shall inquire about any settlement discussions or settlement strategy in this case. It is further ORDERED that Plaintiff's applic ation to preclude questioning about the specific accounts of Plaintiff's book is DENIED. Plaintiff may explain the extent to which the book is fictionalized. It is further ORDERED that Plaintiff's application to preclude questioning abou t money and Plaintiff's financial status is DENIED, as Plaintiff seeks substantial financial damages in this action and such testimony pertains to his bias and credibility. It is further ORDERED that Plaintiff's application to preclude e vidence about Plaintiff's desire or attempts to make a documentary or create a media company is DENIED, as such testimony is relevant to his bias and credibility. It is further ORDERED that Plaintiff's application to exclude references to Plaintiff's drug use is GRANTED IN PART. References to Plaintiff's drug use are excluded except (1) to elicit that the infraction for which Plaintiff was placed in solitary confinement included drug use and (2) to elicit that Plainti ff traded drugs for clothing and commissary items while in prison. Both of these exceptions pertain to Plaintiff's experience in prison for which he seeks damages. References to Plaintiff's use of opiates, i.e., references to the specifi c drug or to opiates, is excluded under Federal Rule of Evidence 403. The particular drug is not significantly more probative than references to drug use generally or marijuana, and could be prejudicial in suggesting that Plaintiff is a bad person for using opiates. (Signed by Judge Lorna G. Schofield on 8/7/2022) (tro)
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Filing
468
ORDER: It is hereby ORDERED that the Court's rulings precluding references to certain bad acts also preclude Defendants from eliciting such evidence through any other witness, including Dr. Agharkar and Dr. Fayer. If Defendants intend to elici t such evidence, they shall seek permission from the Court in advance, and explain the basis for the request, other than simply reiterating their prior arguments. It is further ORDERED that Plaintiff's application to preclude Defendants from que stioning any witness about the retainer agreement or attorneys' fees arrangement in this case as between Neufeld Scheck & Brustin, LLP and Plaintiff is GRANTED on the grounds of relevance and Federal Rule of Evidence 403. Plaintiff's fee ar rangement with counsel is not relevant and may confuse or prejudice the jury, particularly with respect to any consideration of damages. Plaintiff shall disclose, orally to Defendants and to the Court prior to the beginning of trial on August 8, 20 22, any fee arrangement such that Mr. Loewenson, Morrison Foerster, or any other person or entity would share in any recovery in this case. It is further ORDERED that Plaintiff's application to preclude questioning about Plaintiff's " litigation strategy" is denied without prejudice pending further clarification. The Court has already allowed Plaintiff to withhold from Defendants text messages between Plaintiff and Mr. Loewenson concerning trial or settlement strategy on t he basis of the work product doctrine. Neither party shall inquire about any settlement discussions or settlement strategy in this case. It is further ORDERED that Plaintiff's application to preclude questioning about the specific accounts of Pl aintiff's book is DENIED. Plaintiff may explain the extent to which the book is fictionalized. It is further ORDERED that Plaintiff's application to preclude questioning about money and Plaintiff's financial status, as requested, is DE NIED, as Plaintiff seeks substantial financial damages in this action and such testimony pertains to his bias and credibility. It is further ORDERED that Plaintiff's application to preclude evidence about Plaintiff's desire or attempts to m ake a documentary or create a media company is DENIED, as such testimony is relevant to his bias and credibility. It is further ORDERED that Plaintiff's application to exclude references to Plaintiff's drug use is GRANTED IN PART. Reference s to Plaintiff's drug use are excluded except (1) to elicit that the infractions for which Plaintiff was placed in solitary confinement included drug use and (2) to elicit that Plaintiff traded drugs for clothing and commissary items while in pr ison. Both of these exceptions pertain to Plaintiff's experience in prison for which he seeks damages. References to Plaintiff's use of opiates, i.e., references to the specific drug or to opiates, is excluded under Federal Rule of Evidence 403. The particular drug is not significantly more probative than references to drug use generally or marijuana, and could be prejudicial in suggesting that Plaintiff is a bad person for using opiates. (Signed by Judge Lorna G. Schofield on 8/7/2022) (mml)
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Filing
459
ORDER: It is hereby ORDERED that, starting on August 8, 2022, the trial will be conducted from 9:30 a.m. to 5:30 p.m., until testimony is completed. It is further ORDERED that by August 8, 2022, at 9:00 a.m., the parties shall email to Chambers a n updated joint exhibit list. It is further ORDERED that summations for each side are limited to one hour. It is further ORDERED that the charging conference will take place on August 8, 2022, at 5:30 p.m. (Jury Trial set for 8/8/2022 at 09:30 AM before Judge Lorna G. Schofield., Status Conference set for 8/8/2022 at 05:30 PM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 8/5/2022) (jca)
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Filing
457
ORDER: It is hereby ORDERED that Dr. Parker is precluded from testifying about Plaintiff's social media posts. The Court previously ruled that certain of Plaintiff's Facebook activities were excluded (Dkt. No. 308). It is not clear if the referenced social media posts are the same as the ones that were previously excluded. Defendants argue that social media posts are relevant because they are referenced in the "Materials Reviewed" section of Dr. Parkers report, but the mere fact the Dr. Parker reviewed the materials is not, on its own, sufficient to demonstrate probative value with respect to Dr. Parkers opinions. To the extent the referenced social media posts are similar to or the same as the ones previously excluded by the Court -- i.e., Plaintiff's postings about his damages being comparable to a Holocaust survivor and Plaintiffs Facebook friend request -- any probative value is outweighed by the potential for prejudice under Federal Rule of Evidence 403, as such posts may elicit sympathy or indignation from the jury, as further set further herein. (Signed by Judge Lorna G. Schofield on 8/4/2022) (mml)
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Filing
449
ORDER. It is hereby ORDERED that Defendants' request for a curative instruction regarding the vacatur of Plaintiff's conviction is DENIED. Defendants opposed Plaintiff's application to revise this instruction last week on the ground s that it would be prejudicial to alter the instruction on the eve of trial, and that the current instruction "is not misleading or confusing, and appropriately guards against the very real risk that jurors may draw improper inferences from t he fact that plaintiffs conviction was vacated." (Dkt. No. 418) With trial well underway, it would be prejudicial to revise the instruction now, particularly in light of Defendants' recent support of the current language. The Court' s further basis for this ruling will be placed on the record at a later date. It is further ORDERED that Defendants' application to present evidence of the investigation of Plaintiff's alibi by his own criminal defense counsel, including evidence and cross-examining Plaintiff and his alibi witnesses regarding Plaintiff's criminal defense attorney's decision to call only two alibi witnesses is GRANTED IN PART. Defendants may cross-examine Plaintiff about informing his law yer of alibi witnesses and how many alibi witnesses testified at his criminal trial and the reason (e.g., his attorney's decision) but may not elicit any out of court statements offered for the truth, unless they are subject to a hearsay exc eption. Similarly, Defendants may cross-examine alibi witnesses about whether they were contacted by Plaintiff's criminal defense attorney or were called as a witness at Plaintiff's criminal trial, but may not elicit hearsay statements. Defendants may present the following additional testimony of Fernando Torres from the 440 Hearing: 332:13 333:9 and 353:12-22. To the extent that Defendants wish to present additional non-hearsay evidence of the investigation by Plaintiff's criminal defense attorney, they shall identify such evidence and make further application. It is further ORDERED that Defendants' application to preclude further reference to the Bronx District Attorney's re-investigation of the murder i s GRANTED. Plaintiff shall not reference, offer evidence or argue that the District Attorney conducted a re-investigation of the murder, as such evidence or argument creates the false inference that Plaintiff was exonerated, and runs counter to th e Courts prior rulings that the jury's knowledge about the vacatur be limited to the limiting instruction referenced above; and Plaintiff shall not elicit information about the substance of the prior interviews by the District Attorney as the y are not admissible under Rule 801(d) (1)(B), as the prior statements were not made before the motive to fabricate arose and the statements are not alleged to be a recent fabrication or the product of a recent improper influence or motive. (Signed by Judge Lorna G. Schofield on 7/30/22) (yv)
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Filing
442
MEMO ENDORSED ORDER on 428 LETTER addressed to Judge Lorna G. Schofield from Emma Freudenberger dated July 27, 2022 granting 419 Letter Motion to Seal; terminating 430 Letter Motion for Extension of Time. ENDORSEMENT: Application GRANTED. By August 3, 2022, Defendants shall file a redacted version of the letter at Docket No. 407 on the public docket. By August 3, 2022, Plaintiff shall file (i) under seal, the letters and exhibits regarding Defendants' motions to compel and motion for sanctions, that were previously emailed to Chambers and (ii) redacted versions of the same on the public docket. The Clerk of Court is respectfully directed to seal Docket No. 407, and to close the motions at Docket Nos. 419 and 430. Only the parties identified in the Appendix at Docket No. 419-1 shall have access to the letter at Docket No. 407. (Signed by Judge Lorna G. Schofield on 7/29/2022) (mml)
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Filing
435
ORDER: WHEREAS, the jury trial in this matter commenced on July 25, 2022. It is hereby ORDERED that if the parties plan to make any additional applications in anticipation of trial resuming on August 1, 2022, the application(s) and response(s) must be filed by July 29, 2022, at 12:00 p.m. (Motions due by 7/29/2022. Responses due by 7/29/2022.) (Signed by Judge Lorna G. Schofield on 7/28/2022) (mml)
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Filing
427
ORDER: For the reasons discussed at the conference, it is hereby ORDERED that Defendants' motion for reconsideration is GRANTED. Plaintiff's expert, Mr. Grant, is directed to conduct a search of Plaintiff's phone and iCloud account f or purposes of identifying communications between January 27, 2021 to the present, between Plaintiff and individuals who were or are on Plaintiff's witness lists in this action. It is further ORDERED that Defendants' motion for an adverse inference is DENIED without prejudice to renewal following further factual investigation regarding Plaintiff's intent in deleting the text messages and the content of any deleted messages with non-party witnesses. Defendants are permitted to question non-party witnesses regarding any communications they may have had with Plaintiff relating to this action for purposes of impeachment. It is further ORDERED that by July 27, 2022, Plaintiff shall file the letters and accompanying exhibits he previously submitted to Chambers via email concerning the aforementioned motions. If Plaintiff believes any of the materials contain confidential motion, he shall file a motion to seal pursuant to the Court's Individual Rules, explaining why the materials should be afforded confidential treatment. (Signed by Judge Lorna G. Schofield on 7/27/2022) (mml)
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Filing
424
ORDER: ORDERED that by July 27, 2022, Plaintiff shall file a letter explaining why Defendants' letter motion and accompanying exhibits should be afforded confidential treatment. And as set forth herein. (Signed by Judge Lorna G. Schofield on 7/23/2022) (ama)
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Filing
412
ORDER: It is hereby ORDERED that the parties' joint application to excuse for cause forty-one prospective jurors is GRANTED. It is further ORDERED that Defendants' application to excuse for cause forty-two additional jurors is GRANTED IN P ART as to the following ten jurors: Juror #1, Juror #20, Juror #29, Juror #32, Juror #47, Juror #85, Juror #90, Juror #91, Juror #101 and Juror #108. Defendants' application to excuse for cause the remaining thirty-two jurors is DENIED, subject to renewal after voir dire. It is further ORDERED that Plaintiff's application to excuse for cause two additional jurors is DENIED, subject to renewal after voir dire. (Signed by Judge Lorna G. Schofield on 7/21/2022) (mml)
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Filing
401
ORDER: granting 400 Letter Motion for Extension of Time to File. Application GRANTED. By July 14, 2022, the parties shall file a joint letter pursuant to the Court's May 16, 2022, Order (Dkt. No. 376). The Clerk of Court is respectfully directed to close the motion at Docket No. 400. (Signed by Judge Lorna G. Schofield on 7/13/2022) (ama)
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Filing
390
ORDER: It is hereby ORDERED that for substantially the reasons stated by Plaintiff, Defendants' requests to admit Exhibit L (Dkt. No. 388-2) without redactions and to admit Exhibit W (Dkt. No. 388-3) are DENIED pursuant to Federal Rule of Evid ence 403. The redacted portion of Exhibit L states that Plaintiff is "known to this department...[and] wanted... for Robbery and assault, with an active arrest warrant issued." Exhibit W is a wanted poster for the robbery and states th at Plaintiff is CONSIDERED ARMED AND DANGEROUS and known to resist arrest. While Plaintiffs status as a suspect is potentially relevant to the issue of probable cause, these exhibits go beyond merely identifying Plaintiff as a suspect in the robbery and are highly prejudicial by implicating Plaintiffs involvement in an assault and stating that Plaintiff is armed and dangerous and known to resist arrest. It is furtherORDERED that Defendants are precluded from cross-examining or otherwise introdu cing statements made in connection with Plaintiff's allocution to the 1996 robbery pursuant to Federal Rules of Evidence 410(a), 609(b) and 403. First, Plaintiff's guilty plea was withdrawn and is therefore inadmissible under Rule 410(a) . Second, any statements Defendants would seek to use for impeachment purposes are inadmissible under Rules 609(b)(1) and 403, as the probative value of any such statements does not substantially outweigh the prejudicial effect. Statements from t he allocution are highly prejudicial because they may, in substance, amount to a confession to a crime and are likely to confuse to the jury, particularly in light of the Court's instruction that Plaintiff denies he committed the robbery and no court has found him guilty of the robbery (Dkt. No. 355). It is further ORDERED that to the extent Defendants believe that certain references to the 1996 robbery in Plaintiff's exhibits no longer warrant redaction in light of the Modifie d Ruling, prior to June 24, 2022, the parties shall meet and confer in an effort to resolve this issue. As to any unresolved redactions, Defendants shall file a letter by June 24, 2022, identifying those exhibits and requesting the redactions be modified or removed. (Signed by Judge Lorna G. Schofield on 6/13/2022) (mml)
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Filing
386
ORDER: It is hereby ORDERED that for substantially the reasons stated by Plaintiff, Plaintiff's proposed modification to the instruction regarding the NYPD Patrol Guide is adopted. The Court's instruction will be as follows: "Portion s of the New York City Police Department Patrol Guide have been received in evidence. A violation of the Patrol Guide is not itself a violation of federal law. Evidence of the Patrol Guide was admitted for your consideration of whether the conduct of the Defendants deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures. It is important to understand that the issue in this lawsuit is not whether the Defendants vi olated the Patrol Guide. It is whether the Defendants violated the Plaintiff's Constitutional rights or state law. A particular action might violate a provision of the Patrol Guide without violating the Constitution or state law. Similarly, a particular action might violate the Constitution or state law without violating any provision of the Patrol Guide." It is further ORDERED that Plaintiff is precluded from introducing the additional photographs in Exhibit A (Dkt. No. 383-1) pursuant to Federal Rule of Evidence 403. The photographs have little, if any probative value, with respect to damages and would be cumulative to testimony Plaintiff is likely to present regarding damages. The photographs are prejudicial as they t end to elicit a sympathetic emotional response, and the photographs of Plaintiff with Messrs. Loewenson and Maldonado are additionally prejudicial for the reasons stated by Defendant. It is further ORDERED that Defendants' objection to Plainti ff's proposed instruction with respect to Plaintiff's photograph in the mugshot book is SUSTAINED. Defendants represent that the mugshot was taken following Plaintiff's arrest for a 1992 robbery with a firearm and possession of stolen property and that he subsequently pleaded guilty to possession of stolen property. The unqualified statement proposed by Plaintiff might suggest that the photograph was included in the book mistakenly or for an improper reason, which would be prejudi cial to Defendants. Defendants have stated that they do not intend to offer evidence related to that arrest, conviction or the underlying facts and will not suggest to the jury that the photograph evidences a propensity for criminal conduct, which evidence and argument are hereby expressly precluded. Accordingly, the instruction will be as follows: "You have heard evidence that Richard Rosario's photo was in a mugshot book in 1996. I instruct you that the presence of Mr. Rosario� 39;s photo in this book is not evidence of any wrongdoing in this matter, and you are not to consider it as such or to draw any inference against Mr. Rosario based on the presence of his photo in this book." It is further ORDERED that the parti es are reminded to inform the Court at the time they wish a particular limiting instruction to be delivered. On the first day of trial, Plaintiff shall provide the Court with previously ordered or agreed upon limiting instructions identified by nu mber to be delivered during the Plaintiff's case in chief to facilitate such requests. On the morning Defendants begin their case in chief, they shall provide a similar list. It is further ORDERED that with respect to the presentation of additional alibi witnesses, the parties shall meet and confer to discuss Defendants' conditions and a proposed schedule for the witnesses and file a joint letter by June 15, 2022. (Signed by Judge Lorna G. Schofield on 6/8/2022) (mml)
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Filing
382
ORDER: WHEREAS, a conference was held in this action on May 25, 2022, to discuss the upcoming jury trial on July 25, 2022. For the reasons discussed at the conference, it is hereby ORDERED that by June 3, 2022, Defendants shall file a letter s tating whether they oppose Plaintiff's presentation of more than five alibi witnesses, so long as no additional time is allocated for the testimony of any additional alibi witnesses. It is further ORDERED that the parties shall appear for a c onference on July 19, 2022, at 4:00 p.m., to discuss any outstanding issues before the trial begins, on the following conference line: 888-363-4749, access code: 558-3333. ( Telephone Conference set for 7/19/2022 at 4:00 PM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 5/26/2022) (vfr)
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Filing
381
ORDER: the parties shall appear for a conference to discuss the upcoming trial on May 25, 2022, at 5:00 p.m., on the following conference line: 888-363-4749, access code: 558- 3333. (Status Conference set for 5/25/2022 at 05:00 PM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 5/24/2022) (tro)
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Filing
378
ORDER: It is hereby ORDERED that by May 25, 2022, the parties shall jointly file a proposed juror questionnaire, prepared with reference to the previously approved voir dire questions and a sample from a recent civil trial, which are attached hereto. The parties should indicate any disagreement through footnotes or highlighted text. (Signed by Judge Lorna G. Schofield on 5/18/2022) (mml)
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Filing
376
ORDER: WHEREAS, the jury trial in this case is scheduled to begin on July 25, 2022, at 9:45 a.m. It is hereby ORDERED that, by June 28, 2022, Plaintiff shall file a letter stating whether the testimony of Fernando Torres, Lymari Leon and Chenoa Ruiz will be presented at trial via live testimony rather than deposition. It is further ORDERED that, by July 12, 2022, the parties shall file a joint letter that includes the following: (i) Defendants' counter-designations; (ii) Defendants' o bjections to Plaintiff's deposition designations of Mr. Torres, Ms. Leon's and/or Ms. Ruiz's testimony, if Plaintiff expects to present the testimony of Mr. Torres, Ms. Leon and/or Ms. Ruiz by deposition and (iii) Plaintiff's obje ctions to Defendants' counter-designations. The joint letter shall comply with the Court's Individual Rule IV.B.2(g) regarding deposition designations., ( Jury Trial set for 7/25/2022 at 09:45 AM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 5/16/2022) (ama)
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Filing
371
ORDER: It is hereby ORDERED that the jury trial is rescheduled for July 25, 2022, at 9:45 a.m. subject to the availability of courtrooms during the COVID-19 pandemic. The trial will proceed Monday to Thursday except it will not proceed on July 2 8. It is further ORDERED that the parties shall confer about limiting or other interim instructions they intend to propose and file a joint letter by April 29, 2022, stating the proposed instructions, whether the parties agree, any issues in disp ute and the legal basis for the disputes. The parties may include any instruction explaining the absence of any person from all or part of the trial. It is further ORDERED that the parties shall confer regarding demonstrative aids. If there are a ny issues, the parties shall file a joint letter by May 13, 2022, stating the issue and each party's position on the issue and providing a copy of the demonstrative aid. It is further ORDERED that Plaintiff shall file the additional photograp hs that they seek to use during Plaintiff's direct testimony and a joint letter specifying the parties' positions on the admissibility of each photograph where there is any disagreement by May 20, 2022. It further ORDERED that the partie s shall confer about potential testimony regarding why Plaintiff's photo was in the mugshot book. If the parties cannot reach agreement about how to handle any issues, they shall file a joint letter stating the issue, the proposed solution, including any proposed limiting instruction, and the legal basis for the dispute by May 20, 2022. It is further ORDERED that if Defendants would like rulings on any exhibits reconsidered in relation to Plaintiff's status as a robbery suspect, then Defendants shall file a letter by May 20, 2022. It is further ORDERED that the NBC Dateline videos are excluded under Rule 403 for the same reason certain photos at Exhibit P93 were excluded. It is further ORDERED that the twenty-two minute vi deo of Plaintiff is excluded because the danger of unfair prejudice to Plaintiff strongly outweighs the probative value of the video to Defendants' defenses. The probative value of the video is extremely low, and the video may be used to sugg est that Mr. Rosario is a threatening person. It is further ORDERED that Plaintiff's request for clarification as to the admitted portions of the Silverman deposition is GRANTED. The following excerpts from Volume I are excluded: YB188:17-25, P128:25. The following excerpts from Volume II are excluded: Y208:19-25, Y236:13-22. The following excerpts from Volume I are admitted: B35:20-25; Y97:17; Y217:14-218:13. ( Jury Trial set for 7/25/2022 at 09:45 AM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 3/17/2022) (ate)
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Filing
370
ORDER: granting 367 Letter Motion to Adjourn Conference. Application GRANTED for substantially the reasons stated in this letter. The trial scheduled to begin on January 25, 2022, is adjourned sine die, and all deadlines for the trial are adjourned sine die. (Signed by Judge Lorna G. Schofield on 1/18/2022) (ama)
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Filing
366
ORDER re: 327 Letter, filed by City Of New York, Irwin Silverman, Gary Whitaker, Richard Martinez, Charles Cruger. It is hereby ORDERED that the objection is OVERRULED. Given the current conditions of the COVID-19 pandemic in New York, the presence of unvaccinated jurors presents an undue risk of the spread of COVID-19 for vaccinated jurors and an undue risk of disruption to the trial. The CDC currently reports that the risk of community transmission in New York County is high and that the current case rate is 3,027.68 per 100,000. Ctrs. for Disease Control and Prevention, COVID-19 Integrated County View, https://covid.cdc.gov/covid-data-tracker/#county view?list_select_state=New+York&data-type=Risk&list_select_county=36061 (J an. 12, 2022, 8:00 PM). As another Court in this District found, "Jury service is a civic duty and, while it can be inconvenient, it need not increase the risk of being exposed to a deadly disease." Joffe v. King & Spalding LLP, No. 17 Civ. 3392, 2021 WL 5864427, at *1 (S.D.N.Y. Dec. 10, 2021). Defendants first argument is that a jury without unvaccinated individuals would undercut diversity. Defendants do not offer any data in support of this argument. The latest data from the State o f New York suggests that there are not significant disparities of vaccination rates by race or gender. For example, 76.5% of males are vaccinated and 80.0% of females are vaccinated. N.Y. State Dep't of Health, Demographic Vaccination Data, https://coronavirus.health.ny.go /demographic-vaccination-data (Jan. 12, 2022, 11:00 AM). As to race, African American New Yorkers make up about 1.5 percent more of the total population compared to the vaccinated population and White New Yorker s make up 2.7 percent more -- meaning an all-vaccinated jury might very slightly underrepresent African American and White individuals. Id. On the other hand, Asian and Hispanic New Yorkers are overrepresented in the vaccinated population. Id. Noneth eless, race is not expected to play a significant role in the trial and the witnesses and parties themselves have diverse backgrounds, so there is no reason to believe the racial composition of the jury would prejudice the outcome of the trial. There are some variations of vaccination rates by age. Id. Younger New Yorkers are much less likely than older New Yorkers to be vaccinated, but there is no reason to expect this variation to influence the jury's impartiality. (as further set forth h erein). To the extent Defendants are concerned that this Order forecloses unvaccinated witnesses or parties from participating in the trial, their concern is misplaced. The issue Defendants object to is the excusing of unvaccinated jurors for cause, not the participation of unvaccinated witnesses or parties. (Signed by Judge Lorna G. Schofield on 1/13/2022) (kv)
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Filing
362
ORDER: WHEREAS, the jury trial scheduled in this case is scheduled to commence on January 25, 2022, at 9:45 a.m. It is hereby ORDERED that the Defendants shall email their counter-designations and objections to Plaintiff's deposition designa tions of Mr. Torres and Ms. Leon's testimony by January 14, 2022. It is further ORDERED regarding the disputed twenty-two minute video of Plaintiff and the NBC Dateline videos, the parties shall submit to the Court the portions of the videos o n which they seek a ruling and that they may actually play. The parties need not share these excerpts with each other at this time, as the opposing parties have the videos in their entirety and object in their entirety. The parties shall coordinat e with Mr. Street as soon as possible to arrange electronic delivery of the videos. It is further ORDERED that the parties shall contact Mr. Street to arrange a time in advance of the trial to schedule a time to walkthrough the courtroom and discuss any necessary logistics for conducting the trial. ( Jury Trial set for 1/25/2022 at 09:45 AM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 1/11/2022) (rro)
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Filing
358
SCHEDULING ORDER: It is hereby ORDERED that the jury trial in this matter is adjourned sine die and all deadlines for the trial are adjourned sine die. The parties shall confer and file a joint letter no later than January 7, 2022 stating when they are available to proceed with the trial, both later this month as well as in the second quarter of 2022. (Signed by Judge Lorna G. Schofield on 1/3/2022) (jca)
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Filing
341
ORDER: It is hereby ORDERED that, regarding the disputed twenty-two minute video of Plaintiff and the NBC Dateline videos, the parties shall submit to the Court the portions of the videos on which they seek a ruling and that they may actually play. The parties need not share these excerpts with each other at this time, as the opposing parties have the videos in their entirety and object in their entirety. The parties shall coordinate with Mr. Street as soon as possible to arrange digital deliv ery of the videos. It is further ORDERED that, regarding Plaintiffs vacatur, the Court adopts Plaintiff's language: "On March 23, 2016, with the prosecution's consent, the New York Supreme Court vacated Rosario's conviction for reasons unrelated to this case, and he was released." The Court will further instruct, "You the jury must not speculate about the reason for his release as it is not relevant to your deliberations." Plaintiff shall prepare the instru ction and provide it to the Court when Plaintiff requests that the instruction be given. All references to the vacatur during trial must use the above language. It is further ORDERED that to the extent Defendants' expert has relied on and prev iously disclosed and identified specific prior bad acts as a basis for her opinion, then Defendants may elicit those previously identified facts during her testimony as a basis for her opinion. To the extent that Defendants seek to elicit other prio r bad acts, the parties are referred to the prior ruling on Plaintiff's MIL #7 in Dkt. No. 337. To the extent that Defendants seek to present evidence or elicit testimony regarding bad acts not previously ruled upon, Defendants shall raise the issue no later than during the conference immediately following the trial day preceding the day such evidence is to be presented. It is further ORDERED that Mr. Gonzalez's testimony concerning an alternate theory for the murder and the loss of Ms. Collazo's brother are precluded. Plaintiff shall file a letter by December 28, 2021, describing any remaining testimony proposed to be elicited and its probative value and Defendant shall respond by December 29, 2021. It is further ORDERED that, regarding Plaintiff's application for access to the Juror List on the day before the trial, the application is denied as Plaintiff cites no authority to warrant production of the names in the venire for the purpose of counsel conducting j uror research prior to the trial, and apparently such a production has never been made in the Southern District of New York for such purpose, according to a knowledgeable and decades-long employee in the SDNY jury department. (Signed by Judge Lorna G. Schofield on 12/27/2021) (ama)
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Filing
329
ORDER granting in part 323 Motion for Reconsideration re 323 MOTION for Reconsideration re; 322 Order, Set Deadlines/Hearings . filed by Richard Rosario. It is hereby ORDERED that, for the reasons stated at the conference, P laintiff's motion for reconsideration of the time limits previously set by the Court is GRANTED IN PART. Plaintiffs time limit is twenty-five (25) hours and Defendants time limit is twenty (20) hours, comprising direct examination and cross examination (any time that counsel are on their feet). This time limit does not include opening statements or summations, nor does it include time for Plaintiffs witnesses called exclusively for authentication or foundation of evidence that Defend ants do not actually dispute. Defendants will not be given additional time for any such witnesses. Further, Plaintiff may allocate any amount of time for alibi witnesses within his twenty-five hour limit, but shall present no more than five alibi witnesses. Opening statements shall be limited to forty-five (45) minutes. It is further ORDERED that by December 24, 2021, Plaintiff shall submit a letter stating how he would like to address his claims against Defendant Silverman. It is further ORDERED that by December 20, 2021, Defendant shall submit a letter regarding (1) the favorable termination element of Plaintiff's malicious prosecution claim and (2) case law related to damages in § 1983 denial of a right to a fair trial cases that bears on the use of "if any" in the damages section of the preliminary jury charge. By December 20, 2021, Plaintiff shall submit a letter regarding the same damages issue. It is further ORDERED that Defendant shall submit prop osed special interrogatories before the final charging conference. It is further ORDERED that the parties' deadline to email to the Chambers in box highlighted and annotated proposed deposition designations is extended to December 21, 2021. I t is further ORDERED that the final pretrial conference will continue on December 21, 2021, at 2:00 P.M. The parties shall call 888-363-4749 using access code 558-3333 at that time. In advance of the conference, the parties shall confer and attempt to resolve any remaining objections to the proposed trial exhibits. The Clerk of Court is respectfully directed to close the motion at Dkt. No. 323. (Signed by Judge Lorna G. Schofield on 12/17/2021) (jca) Modified on 12/17/2021 (jca).
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Filing
322
ORDER: ORDERED that Plaintiff's request is GRANTED. Plaintiff may call up to five alibi witnesses, and the total time for presenting alibi witnesses shall not exceed forty-five (45) minutes, which is included in the total time limit. It is fur ther ORDERED that the time limit is fourteen (14) hours per side, comprising opening statements, direct examination and cross examination (any time that counsel are on their feet). This time limit does not include summations, nor does it include time for Plaintiff's witnesses called exclusively for authentication or foundation of evidence that Defendants do not actually dispute. Defendants will not be given additional time for any such witnesses. The parties are advised that jury selectio n is likely to take place on January 6, 2022, and the trial will resume on January 10, 2022. The Court intends to sit Monday through Thursday, except federal holidays, and the parties can expect approximately five hours of testimony each day., ( Ready for Trial by 1/10/2022., Jury Trial set for 1/6/2022 at 09:45 AM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 12/13/2021) (ama)
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Filing
314
ORDER: It is hereby ORDERED that by December 10, 2021, the parties shall (1) meet and confer to discuss objections regarding proposed trial exhibits, (2) update their exhibit lists to reflect their discussions and the removal of exhibits that a party does not intend to introduce in its case in chief and (3) hand deliver to the Court CDs containing their proposed trial exhibits in PDF format and updated exhibit list (hyperlinked if possible). The parties shall file the updated exhibit list on th e docket. It is further ORDERED that by December 15, 2021, Defendants shall file any objection to the Court's excusing for cause potential jurors who are not vaccinated. It is further ORDERED that Plaintiff's deadline to file a letter reg arding Fernando Torres's availability to testify at trial is extended to December 21, 2021. It is further ORDERED that by December 17, 2021, the parties shall email highlighted and annotated proposed deposition designations to the Court's email inbox. It is furtherORDERED that the jury trial in this matter is adjourned to January 6, 2022, at 9:45 a.m., which is a trial date certain subject to the exigencies of the ongoing COVID-19 pandemic., ( Jury Trial set for 1/6/2022 at 09:45 AM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 12/07/2021) (ama)
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Filing
308
ORDER terminating 235 Motion in Limine; terminating 237 Motion in Limine; terminating 239 Motion in Limine; terminating 241 Motion in Limine; terminating 244 Motion in Limine; terminating 247 Motion in Limine; terminating 250 Mo tion in Limine; terminating 253 Motion in Limine; terminating 256 Motion in Limine; terminating 270 Motion in Limine. In sum, it is ORDERED that Defendants' application to (i) preclude Plaintiff from referring to their counsel as " ;City Attorneys" is GRANTED; (ii) preclude Plaintiff from including the "City of New York" in the case caption is DENIED; (iii) preclude Plaintiff from suggesting individual Defendants will be indemnified is DENIED AS MOOT; (iv) preclu de Plaintiff from offering evidence concerning the New York City Police Department Patrol Guide, training or policies is DENIED; (v) preclude Plaintiff from offering evidence about any past bad acts of Defendants is DENIED AS MOOT; (vi) preclude Plai ntiff from referring to unrelated instances of police misconduct is DENIED AS MOOT; (vii) preclude Plaintiff from arguing that Defendants should have investigated his alibi is DENIED; (viii) preclude Plaintiff from presenting evidence from his alibi witnesses is DENIED; (ix) preclude Plaintiff from presenting evidence from his damages witnesses is DENIED; (x) preclude Plaintiff from playing episodes from the NBC Dateline series is RESERVED; (xi) preclude Plaintiff from arguing that he was exoner ated or that his conviction was vacated based on a finding of innocence is DENIED AS MOOT and (xii) preclude Plaintiff from suggesting a specific dollar amount of damages to the jury is DENIED. It is further ORDERED that Plaintiff's application to (i) preclude witnesses from offering testimony as to credibility of Defendants or other witnesses and from testifying as to legal conclusions is DENIED AS MOOT; (ii) preclude Defendants from introducing evidence related to Plaintiff's arres t in Florida in 1996 is GRANTED IN PART and DENIED IN PART; (iii) preclude Defendants from introducing evidence of their good character is DENIED AS MOOT; (iv) preclude Defendants from introducing evidence of his defense attorney's effectivenes s in his underlying criminal trial is GRANTED IN PART and DENIED IN PART; (v) preclude Defendants from offering hearsay testimony about a purported statement made by Plaintiff to Jason Lebron is DENIED AS MOOT; (vi) permit his counsel to ask leading questions of adverse or hostile witnesses is GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE; (vii) preclude Defendants from introducing evidence of Plaintiff's purported bad acts is GRANTED IN PART and DENIED IN PART; (viii) preclude Defen dants from eliciting testimony from Guanica Collazo about his character and guilty is GRANTED IN PART and DENIED IN PART and (ix) preclude Defendants from offering evidence related to his conviction for a 1996 robbery is GRANTED. The Clerk of Court is respectfully directed to close the motions at Dkt. Nos. 235, 237, 239, 241, 244, 247, 250, 253, 256 and 270. (Signed by Judge Lorna G. Schofield on 11/22/2021) (mml)
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Filing
304
ORDER: WHEREAS, the parties filed proposed voir dire questions, proposed jury instructions and a proposed jury charge on October 7, 2021 (Dkt. Nos. 288, 290 and 291). It is hereby ORDERED that the parties shall email the aforementioned documents in Microsoft Word format to the Court's email inbox by November 16, 2021. (Signed by Judge Lorna G. Schofield on 11/15/2021) (vfr)
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Filing
281
MEMO ENDORSEMENT denying without prejudice 279 Motion re: 279 MOTION FOR A JURY QUESTIONNAIRE . ENDORSEMENT: Plaintiff's motion is denied without prejudice for failure to comply with Individual Rule III.A.I. If Plaintiff s eeks to renew his motion, he shall file a pre-motion letter. Prior to filing a letter, Plaintiff shall confer with Defendants to determine if they consent to Plaintiff's request. So Ordered. (Signed by Judge Lorna G. Schofield on 9/22/2021) (cf)
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Filing
231
ORDER granting 230 Letter Motion for Extension of Time to File. The parties' application for an extension of time to file pre-trial submissions is GRANTED. (Signed by Judge Lorna G. Schofield on 6/1/2021) (cf)
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Filing
229
OPINION AND ORDER re: 209 MOTION to Preclude pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), the Expert Testimonies and Reports of Jennifer Dysart Ph.D. and Bhushan Aghar kar M.D.. filed by City Of New York, Irwin Silverman, Gary Whitaker, Richard Martinez, Charles Cruger, 206 MOTION to Preclude Portions of the Opinions and Testimony of Defendants Experts Steven A. Fayer, M.D. and DeAnsin G. Parker , Ph.D. filed by Richard Rosario. For the reasons set forth above, Plaintiff's motion to exclude the testimony of Steven A. Fayer is GRANTED IN PART -- his opinion and testimony on ASPD are excluded as unreliable; Plaintiff's motio n to exclude the testimony of DeAnsin G. Parker is DENIED; Defendants' motion to exclude the testimony of Jennifer Dysart is DENIED; and Defendants motion to exclude the testimony of Bhushan Agharkar is DENIED. The Clerk of Court is respectfully directed to close the motions at Docket Nos. 206 and 209. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 5/13/202) (cf)
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Filing
204
ORDER: It is hereby ORDERED that by March 8, 2021, the parties shall meet and confer and file a letter proposing three Mondays in the third quarter of 2021 on which they could commence a trial and stating the estimated duration of the trial. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 3/1/2021) (cf)
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Filing
203
ORDER: For the reasons stated at the conference, it is hereby ORDERED that the parties' pretrial deadlines will remain in place, except the deadline for the parties' deposition designations will be determined once there is further information on when this jury trial may proceed. A status conference will be scheduled once such information is made available. (Signed by Judge Lorna G. Schofield on 2/25/2021) (ks)
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Filing
191
OPINION AND ORDER: Summary judgment is GRANTED as to (1) the § 1983 malicious prosecution claim, and (2) all claims against Detective Silverman, except the failure to intervene claim. For clarity, the surviving claims are: Count Two, denial o f a right to a fair trial against Defendants Whitaker, Cruger and Martinez; Count Three, failure to intervene, against Defendants Whitaker, Cruger, Martinez and Silverman; Count Seven, New York malicious prosecution, against Defendants Whitaker, Cruger and Martinez; and Count Ten, respondeat superior, against Defendant City of New York, for the state tort of malicious prosecution. Per the Order at Dkt. No. 163, the parties are reminded to file their pre-motion letters proposing their Dau bert motions within ten days of the date of this Opinion and Order. The Clerk of Court is respectfully directed to dismiss Defendant Fortunato from the action, and close the motion at Docket No. 166. (As further set forth in this Order.) Joseph Fortunato terminated. (Signed by Judge Lorna G. Schofield on 1/20/2021) (cf)
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Filing
146
OPINION AND ORDER re: 61 MOTION for Judgment on the Pleadings filed by City Of New York, Irwin Silverman, Joseph Fortunato, Edward J. Monks, Gary Whitaker, Richard Martinez, Charles Cruger.For the foregoing reasons, the motion is DENI ED in part and GRANTED in part. The motion is granted as to all claims against Defendant Monks, who is dismissed. The motion is granted as to Counts Four (civil rights conspiracy) and Five (supervisory liability), which are dismissed. Plaintiff has v oluntarily dismissed Counts Six (Monell claim), Eight (intentional infliction of emotional distress), Nine (negligence) and Eleven (New York constitutional claims). The motion is denied as to the following surviving claims: Count One, federal malici ous prosecution, against Defendants Whitaker, Silverman, Cruger, Fortunato and Martinez; Count Two, denial of fair trial, against Defendants Whitaker, Silverman, Cruger, Fortunato and Martinez. To the extent that Count Two is premised on false ident ification, these claims remain only against Defendants Martinez, Cruger and Whitaker; Count Three, failure to intervene, against Defendants Whitaker, Silverman, Cruger, Fortunato and Martinez; Count Seven, New York malicious prosecution, against De fendants Whitaker, Silverman, Cruger, Fortunato and Martinez; and Count Ten, respondeat superior, against Defendant City of New York, for the state tort of malicious prosecution. The Clerk of Court is respectfully directed to close the motion at Docket Number 61. Edward J. Monks terminated. (Signed by Judge Lorna G. Schofield on 9/16/2019) (ne)
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