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THE TRIAL COURT PROPERLY PRECLUDED DEFENDANTS FROM CALLING PLAINTIFF’S TREATING PHYSICIANS AS WITNESSES IN THIS POLICE EXCESSIVE FORCE CASE BECAUSE OF INADEQUATE NOTICE AND THE TRIAL COURT PROPERLY ACCEPTED PLAINTIFF’S REDACTIONS OF THE MEDICAL RECORDS BECAUSE DEFENDANTS FAILED TO SUGGEST THEIR OWN REDACTIONS (FIRST DEPT).

The First Department determined the trial court properly precluded the defendants to call plaintiff’s (Walid’s) treating physicians as witnesses and properly redacted plaintiff’s medical records. Plaintiff, a teenager with autism, brought this action against police officers for assault, battery and use of excessive force. Defendants did not give timely notice of their wish to call the treating doctors and did not supply their own suggested redactions:

We find that, under the circumstances, the trial court did not improvidently exercise its discretion in precluding defendants from introducing testimony from Walid’s treating doctors at Ferncliff Manor. Defendants failed to disclose any of these witnesses until four days before trial, after having previously affirmatively represented to the court that they did not intend to call any witnesses. The court and plaintiffs relied on this representation in estimating the length of trial and selecting a jury. In view of the trial court’s broad authority to control its courtroom, it was not unreasonable for the court to decline to add these witnesses and prolong the trial when a jury had already been chosen (twice) based on certain representations about its length … .

The trial court also did not improvidently exercise its discretion in allowing only a limited subset of Walid’s records from Ferncliff Manor to be admitted into evidence. It is clear that these records required at least some redaction, including to eliminate double hearsay … and propensity evidence … . Because defendants refused to propose any redactions, after having been given ample opportunities to do so, the trial court was justified in adopting plaintiffs’ proposed redactions instead. Even if defendants are correct that the complete records contain additional relevant evidence that should not have been excluded, having failed to propose any redactions of their own, defendants cannot now complain that the records should have been redacted less heavily. Walid M. v City of New York, 2019 NY Slip Op 07739, First Dept 10-29-19

 

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