Phillips v. The City of Middletown

Background

Richard G. Dinenny was fatally shot by officers of the Middletown Police Department while he was in possession of a pellet gun. Nicole Phillips, identified as Dinenny’s daughter and the administrator of his estate, sued the City of Middletown, George Neilson, Jason Berman, David Franck, and Jordan McInerney. The amended complaint asserted claims under the Fourth, Eighth, and Fourteenth Amendments and state law.

In an earlier ruling, the court allowed the following claims to continue: a Fourth Amendment excessive-force claim against the four officers; assault and battery claims against those officers; and a wrongful-death claim against the officers and the City. The excessive-force claim was limited to the theory that the officers used excessive force because Dinenny did not have the gun and it was not close by. The court identified the location of the gun and whether Dinenny’s arm was raised as important factual issues.

Motions

Defendants moved for summary judgment, which asks the court to decide a claim without a trial when the record shows no genuine dispute over a fact important to the result. Phillips also moved for permission to file an expert report after the deadline for expert discovery. The proposed report was prepared by Dr. Zhongxue Hua, a forensic pathologist and neuropathologist. Dr. Hua concluded, based on the autopsy report, that the gunshot wound to Dinenny’s right wrist indicated that his palm was facing the officers and that his hand could not have been in an implied shooting position at the moment of that wound.

The expert report was dated November 7, 2019, more than three months after the expert-discovery deadline. Phillips’s counsel explained that he did not realize a forensic pathologist could provide relevant testimony until after reviewing deposition testimony while preparing the opposition to summary judgment. The court found that explanation extremely weak because the depositions had concluded by May 17, 2019, and the importance of Dinenny’s arm and hand placement had already been identified in the court’s earlier ruling.

Reason for Allowing the Late Report

Under Federal Rule of Civil Procedure 37, a party that fails to disclose required information generally may not use it unless the failure was substantially justified or harmless. The court weighed four considerations: the explanation for the delay, the importance of the testimony, prejudice to the opposing party, and the possibility of a continuance.

The court found that the explanation for the delay strongly favored excluding the report. But it found that the report could be important because Dinney was dead and the expert’s testimony might help challenge the officers’ accounts of the shooting. The court also found that Defendants’ prejudice could be reduced by allowing them to depose Dr. Hua and obtain a rebuttal expert. Because no trial date had been set, the court concluded that a continuance was unnecessary and that the delay would not cause appreciable prejudice.

The court cautioned that Dr. Hua’s opinion might not resolve whether Dinney’s hand was rising when he was first shot. It also noted that a palm facing the officers might not necessarily be inconsistent with raising the gun, and that Dinney’s refusal to drop the gun might independently justify the use of force. The court therefore did not decide whether the expert’s testimony would ultimately establish a genuine dispute of material fact.

Ruling

Judge Cathy Seibel granted Phillips’s motion for leave to file Dr. Hua’s expert report. The court extended expert discovery until October 23, 2020, but only so Defendants could depose Dr. Hua and offer a rebuttal expert. Defendants’ motion for summary judgment was denied without prejudice to renewal, because further factual development was needed.

The court ordered Phillips’s counsel, rather than Phillips, to pay Defendants’ counsel the reasonable expenses incurred in preparing the initial summary-judgment motion. The court directed Defendants to submit their fees and expenses and allowed Phillips’s counsel to respond. The court also directed the parties to propose a schedule for a renewed summary-judgment motion and ordered the Clerk to terminate the pending motions.