Rosado v. Soriano

Background

Edward Rosado sued the City of New York, Police Officer Amaury Soriano, and two unnamed police officers under 42 U.S.C. § 1983. He alleged excessive force, false arrest, and municipal liability based on one incident in the Bronx on May 4, 2013. On June 26, 2020, the court granted the defendants’ motion for summary judgment on every claim except excessive force. Trial on that remaining claim against Officer Soriano was scheduled for August 11, 2021.

Motions Concerning Witnesses

Soriano sought to prevent four witnesses identified in the joint pretrial order from testifying because Rosado had not properly identified them in required discovery disclosures: Gina Rosado, Briana Rosado, Dr. Shoshana Weiner, and an unnamed person from the Bronx District Attorney’s Office. Rosado agreed not to call Dr. Weiner or the unnamed person and stated that he no longer intended to call Gina Rosado.

The dispute over Briana Rosado involved Federal Rule of Civil Procedure 26, which requires parties to disclose information about trial witnesses, and Rule 37(c)(1), which generally bars use of an undisclosed witness unless the failure was substantially justified or harmless. The court found that Rosado plainly failed to comply with the disclosure requirement. It nevertheless declined to impose the severe sanction of excluding Briana Rosado entirely.

The court considered the factors used to decide whether an undisclosed witness should be excluded: the explanation for the failure, the importance of the testimony, prejudice to the opposing party, and the possibility of a continuance. Rosado did not adequately explain why he failed to disclose Briana Rosado before discovery ended. But her testimony was important because she was the only non-party witness Rosado intended to call and the only non-police eyewitness to the incident. The court also found that Soriano would not suffer undue prejudice because Rosado had previously identified Briana Rosado in interrogatory answers, provided her address, and testified that she witnessed the alleged assault.

The court therefore denied Soriano’s motion to exclude Briana Rosado, on the condition that Rosado make her available for a deposition, by video or in person, before the first day of trial.

Other Motions

Rosado did not respond to Soriano’s remaining motions. The court treated those motions as unopposed and granted them. The order precluded Rosado from:

- introducing evidence or making arguments solely concerning claims the court had already dismissed; - referring to defense counsel as “City Attorneys”; - mentioning indemnification; - referencing the New York City Police Department Patrol Guide; - asking the jury to award a specific dollar amount; - presenting evidence of Soriano’s disciplinary history or complaints or lawsuits filed against him; - referring to unrelated alleged police misconduct or using terms such as “testilying” and “blue wall of silence”; - arguing or presenting evidence that Soriano’s own actions created the need to use force; and - presenting evidence or testimony concerning lost income or future expenses.

The court stated that it would address hearsay and relevance objections to particular proposed exhibits at the final pretrial conference. Judge Ronnie Abrams concluded that Soriano’s motions were granted in part and denied in part. The clerk was directed to terminate docket item numbers 151, 152, and 153.