Ross v. Guy, No. 1:2018cv01340 - Document 96 (E.D.N.Y. 2022)
Court Description: DECISION & ORDER: Before the Court is Defendant Akil Guy's motion under Fed. R. Civ. P. 37(b) for sanctions against Plaintiff Kwesi Ross for failing to properly preserve medical records from a hospital in Guyana regarding the Plaintiff's 2015 motorcycle accident. For the reasons set forth in the Decision & Order, the Defendants motion is granted in part and denied in part. So Ordered by Judge William F. Kuntz, II on 3/16/2022. (Attachments: # 1 Exhibit A) (Yu, Stephanie)
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Ross v. Guy Doc. 96 Att. 1 EXHIBIT A Dockets.Justia.com Sidebar 4 1 (The following occurred at sidebar.) 2 THE COURT: 3 State your name, counsel, because he's relatively new to the game. 4 MS. FADDIS: Hannah Faddis, Your Honor. 5 Dr. Simela is plaintiff's orthopedic expert who I 6 anticipate, based on this report, is going to testify 7 regarding the nature and causation of plaintiff's orthopedic 8 injuries which the defendants, a few hours ago, moved to 9 dismiss as claims for damages in this action. We wanted to 10 bring it to the Court's attention, obviously, before that 11 testimony begins, since that application is still pending. 12 THE COURT: What's the response? 13 MR. LUMER: Your Honor, first the issue of which 14 incident might -- they're seeking to dismiss is the 2015 15 motorcycle accident. 16 2012 accident which nobody is disputing. 17 would be -- the motion hasn't been ruled on -- as an initial 18 matter, defendant's motion from earlier today has not been 19 formally ruled on, so to prevent us from putting in our case 20 would be extremely prejudicial to us. 21 small cost to plaintiff. 22 renewing our response to the Rule 37 motion that was made 23 earlier today. 24 to -- and let me back up one sec. 25 We're beginning with Dr. Simela with the And I would say it The doctor here is no I don't want to bother the Court by But I think that this evidence goes directly There's no real issue here. We're not arguing that AVERY N. ARMSTRONG, RPR Official Court Reporter Sidebar 5 1 the hand fractures were caused by this defendant. 2 a question of exacerbation of injuries in terms of pain, 3 suffering, and the reasonableness of claiming that he could 4 hold onto the fence the way he has been alleged to have been 5 holding onto the fence. 6 testimony would be grossly disproportionate to the motion that 7 was made earlier and very unfair to the plaintiff. 8 THE COURT: 9 MS. FADDIS: It's really I think that not allowing this What's the response? Yes, Your Honor. Plaintiff is claiming 10 a series of orthopedic injuries as damages in this case which 11 includes injuries to is left leg and left hand. 12 injuries were initially in sustained in 2012. 13 those body parts in 2015 -- 14 THE COURT: 15 MS. FADDIS: Those He reinjured Slow it down. As the Court is aware, there was 16 evidence in the plaintiff's possession relating to the 17 condition of both of those body parts in February of 2015 18 following his second accident that has now been spoliated. 19 to allow the plaintiff to pursue these claims and to present 20 expert evidence on injuries to those body parts that is going 21 to attribute to the conduct of the defendant should not be 22 permitted when the defendants have been precluded of entering 23 entirely by the conduct of the plaintiff from ascertaining the 24 condition of those body parts immediately proceeding this 25 arrest. AVERY N. ARMSTRONG, RPR Official Court Reporter So Sidebar 6 1 THE COURT: What's the response? 2 MR. LUMER: First, putting aside our objection to 3 the idea that plaintiff has withheld material, that's for 4 another day. 5 THE COURT: No, that's for this day. 6 MR. LUMER: Well, for this day, but not necessarily 7 for this specific moment. 8 THE COURT: It's for this specific moment. 9 MR. LUMER: Okay. Then we deny that, and we would 10 argue that there was an issue about that. But I think more 11 importantly, the 2015 accident had nothing to do with his leg. 12 MS. RAMEAU: 13 MR. LUMER: Hip and leg. 14 THE COURT: You have to slow down. 15 I'm using hip to mean -Vader, not Chris Rock, not Woody Allen. 16 17 Hip. MR. LUMER: his leg. The 2015 accident injured his hand, not And I use the term leg to mean help, leg, knee. 18 MS. RAMEAU: 19 MR. LUMER: Because he had issues -So what is relevant here is the claim is 20 is that when he was slammed to the ground, the hardware that 21 had been surgically implanted years earlier was damaged and 22 that caused him injury. 23 exchanged by the parties go to whether there's a causal 24 connection between that trauma and the damage to the hardware. 25 And that is the principle part of this testimony. The expert reports that were AVERY N. ARMSTRONG, RPR Official Court Reporter That is the Sidebar 7 1 bulk of what this doctor is going to testify to. 2 no suggestion here that I'm aware of and maybe counsel thinks 3 there is, that the -- whatever Ms. Philander was referring to 4 would have impacted upon that or changed that in any way. 5 THE COURT: And there's Ms. Philander said specifically that she 6 had the 2/12 and the 2/15 medical reports. She said it very 7 clearly, she said is repeatedly, and she was your witness. 8 MR. LUMER: Absolutely, Judge. 9 THE COURT: I am granting the defense motion with 10 respect to spoliation, and I am precluding this witness from 11 testifying. 12 You have your objection preserved, for the record. 13 MR. LUMER: 14 About anything, Your Honor? I just want to make sure -- 15 THE COURT: Without anything? 16 without anything? 17 those documents disappear. 18 me, you called that witness as your second witness. 19 called that witness. 20 You. You know who did You did without anything. You called that witness -- excuse You better remember where you, okay. And you had better step back. that witness. 22 call those marshals up here if you get any closer. Okay. You called that witness. the documents, and they made them disappear. 25 granted. AVERY N. ARMSTRONG, RPR Official Court Reporter Because I'll She said she had 24 Step back. You You called 21 23 You made The motion is Sidebar 1 MR. LUMER: Can I make my record? 2 THE COURT: You've made your record. Step back. 3 MR. LUMER: I have not made my record. 4 THE COURT: Step back. 5 MR. LUMER: I have not made my record. 6 THE COURT: You're about to be held in contempt. 7 MS. RAMEAU: 8 (End of sidebar conference.) 9 (Continued on the next page.) It's okay. It's all right. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AVERY N. ARMSTRONG, RPR Official Court Reporter 8
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