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Ross v. Guy

United States District Court, E.D. New York
Mar 16, 2022
18-CV-1340 (WFK) (E.D.N.Y. Mar. 16, 2022)

Opinion

18-CV-1340 (WFK)

03-16-2022

KWESI ROSS, Plaintiff, v. AKIL GUY, Defendant.


EXHIBIT A

(The following occurred at sidebar.)

THE COURT: State your name, counsel, because he's relatively new to the game.

MS. FADDIS: Hannah Faddis, Your Honor.

Dr. Simela is plaintiff's orthopedic expert who I anticipate, based on this report, is going to testify regarding the nature and causation of plaintiff's orthopedic injuries which the defendants, a few hours ago, moved to dismiss as claims for damages in this action. We wanted to bring it to the Court's attention, obviously, before that testimony begins, since that application is still pending.

THE COURT: What's the response?

MR. LUMER: Your Honor, first the issue of which incident might -- they're seeking to dismiss is the 2015 motorcycle accident. We're beginning with Dr. Simela with the 2012 accident which nobody is disputing. And I would say it would be -- the motion hasn't been ruled on -- as an initial matter, defendant's motion from earlier today has not been formally ruled on, so to prevent us from putting in our case would be extremely prejudicial to us. The doctor here is no small cost to plaintiff. I don't want to bother the Court by renewing our response to the Rule 37 motion that was made earlier today. But I think that this evidence goes directly to -- and let me back up one sec.

There's no real issue here. We're not arguing that the hand fractures were caused by this defendant. It's really a question of exacerbation of injuries in terms of pain, suffering, and the reasonableness of claiming that he could hold onto the fence the way he has been alleged to have been holding onto the fence. I think that not allowing this testimony would be grossly disproportionate to the motion that was made earlier and very unfair to the plaintiff.

THE COURT: What's the response?

MS. FADDIS: Yes, Your Honor. Plaintiff is claiming a series of orthopedic injuries as damages in this case which includes injuries to is left leg and left hand. Those injuries were initially in sustained in 2012. He reinjured those body parts in 2015

THE COURT: Slow it down.

MS. FADDIS: As the Court is aware, there was evidence in the plaintiff's possession relating to the condition of both of those body parts in February of 2015 following his second accident that has now been spoliated. So to allow the plaintiff to pursue these claims and to present expert evidence on injuries to those body parts that is going to attribute to the conduct of the defendant should not be permitted when the defendants have been precluded of entering entirely by the conduct of the plaintiff from ascertaining the condition of those body parts immediately proceeding this arrest.

THE COURT: What's the response?

MR. LUMER: First, putting aside our objection to the idea that plaintiff has withheld material, that's for another day.

THE COURT: No, that's for this day.

MR. LUMER: Well, for this day, but not necessarily for this specific moment.

THE COURT: It's for this specific moment.

MR. LUMER: Okay. Then we deny that, and we would argue that there was an issue about that. But I think more importantly, the 2015 accident had nothing to do with his leg.

MS. RAMEAU: Hip.

MR. LUMER: Hip and leg. I'm using hip to mean

THE COURT: You have to slow down. Vader, not Chris Rock, not Woody Allen.

MR. LUMER: The 2015 accident injured his hand, not his leg. And I use the term leg to mean help, leg, knee.

MS. RAMEAU: Because he had issues

MR. LUMER: So what is relevant here is the claim is is that when he was slammed to the ground, the hardware that had been surgically implanted years earlier was damaged and that caused him injury. The expert reports that were exchanged by the parties go to whether there's a causal connection between that trauma and the damage to the hardware. And that is the principle part of this testimony. That is the bulk of what this doctor is going to testify to. And there's no suggestion here that I'm aware of and maybe counsel thinks there is, that the -- whatever Ms. Philander was referring to would have impacted upon that or changed that in any way.

THE COURT: Ms. Philander said specifically that she had the 2/12 and the 2/15 medical reports. She said it very clearly, she said is repeatedly, and she was your witness.

MR. LUMER: Absolutely, Judge.

THE COURT: I am granting the defense motion with respect to spoliation, and I am precluding this witness from testifying.

You have your objection preserved, for the record.

MR. LUMER: About anything, Your Honor? I just want to make sure

THE COURT: Without anything? You know who did without anything? You. You did without anything. You made those documents disappear. You called that witness -- excuse me, you called that witness as your second witness. You called that witness.

You better remember where you, okay. You called that witness. And you had better step back. Because I'll call those marshals up here if you get any closer.

Okay. You called that witness. She said she had the documents, and they made them disappear. The motion is granted. Step back.

MR. LUMER: Can I make my record?

THE COURT: You've made your record. Step back.

MR. LUMER: I have not made my record.

THE COURT: Step back.

MR. LUMER: I have not made my record.

THE COURT: You're about to be held in contempt.

MS. RAMEAU: It's okay. It's all right.

(End of sidebar conference.)


Summaries of

Ross v. Guy

United States District Court, E.D. New York
Mar 16, 2022
18-CV-1340 (WFK) (E.D.N.Y. Mar. 16, 2022)
Case details for

Ross v. Guy

Case Details

Full title:KWESI ROSS, Plaintiff, v. AKIL GUY, Defendant.

Court:United States District Court, E.D. New York

Date published: Mar 16, 2022

Citations

18-CV-1340 (WFK) (E.D.N.Y. Mar. 16, 2022)