13-430
De   Michele   v.   Tierney


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS  BY  SUMMARY  ORDER  DO  NOT  HAVE  PRECEDENTIAL  EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT'S LOCAL RULE 32.1.1.   WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION "SUMMARY ORDER").    A PARTY CITING TO A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
      th
the 7    day of February, two thousand fourteen.

PRESENT:  DENNY CHIN,
          SUSAN L. CARNEY,
          CHRISTOPHER F. DRONEY,
                    Circuit Judges.
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FRANK DE MICHELE,
                                Plaintiff-Appellant,

                                -v-                            13-430

BRIAN P. TIERNEY, in his individual
and official capacity as Police
Officer in the Westchester County
Department of Public Safety, GEORGE
O. RUIZ, in his official capacity as
Police Officer in the Westchester
County Department of Public Safety,
CHRISTIAN M. GUTIERREZ, in his
individual and official capacity as
Police Officer in the Westchester
County Department of Public Safety,
                    Defendants-Appellees,

CITY OF NEW YORK, DOES 1-20,
TIMOTHY BUGGE, in his individual
capacity and in his official
capacity as a Deputy Inspector in
the New York Police Department,
DEODAT URPRASAD, in his individual
capacity and his official capacity
as a Captain in the New York City
Police Department, ADAM MELLUSI, in
his individual and official
capacity as a Sergeant in the New
York City Police Department, ROGER
DICARLO, in his individual and
official capacity as police officer
in the New York Police Department,
ANDREW MYBERG, in his individual
and official capacity as a police
officer in the New York Police
Department, MITCHELL B. SERLIN, in
his individual and official
capacity as a Police Officer in the
Westchester County Department of
Public Safety, CHRISTOPHER M.
LIEBERMAN, in his official capacity
as Police Officer in the
Westchester County Department of
Public Safety, MICHAEL N. BRADY, in
his official capacity as Police
Officer in the Westchester County
Department of Public Safety,
RICHARD E. PUCILLO, in his official
capacity as Police Officer in the
Westchester County Department of
Public Safety, County of
Westchester, WILLIAM T. MCGUINNESS,
in his individual and official
capacity as a Sergeant in the
Westchester County Department of
Public Safety,
                    Defendants.

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FOR PLAINTIFF-APPELLANT:      SCOTT J. KOPLIK (Todd J. Krouner,
                              on the brief), Law Office of Todd
                              J. Krouner, Chappaqua, New York.

FOR DEFENDANTS-APPELLEES:     LINDA MARIE TRENTACOSTE, Associate
                              County Attorney, for Robert F.
                              Meehan, Westchester County
                              Attorney, White Plains, New York.

          Appeal from the United States District Court for the

Southern District of New York (Gardephe, J.).

          UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.




                               -2-
          Plaintiff-appellant Frank De Michele appeals from the

district court's judgment entered January 2, 2013, pursuant to a

jury verdict in favor of defendants-appellees Brian P. Tierney,

George O. Ruiz, and Christian M. Gutierrez, dismissing De

Michele's claims under 42 U.S.C. § 1983 for, inter alia, the use

of excessive force in violation of the Fourth Amendment.    De

Michele argues on appeal that the district court erred in (1)

failing to instruct the jury on a theory of "alternative

liability," (2) permitting improper expert testimony, and (3)

precluding evidence that the defendants engaged in a cover-up.

We assume the parties' familiarity with the facts, procedural

history, and issues for review.

1.   Alternative Liability Jury Instruction

          Where there is a factual predicate in the trial record,

a district court must give a properly requested jury charge.

Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) ("A litigant

is entitled to an instruction on a claim where that claim is

supported by evidence of probative value."); cf. McCardle v.

Haddad, 131 F.3d 43, 52 (2d Cir. 1997) ("A party is not entitled

to have the court give the jury an instruction for which there is

no factual predicate in the trial record.").

          Here, De Michele requested that the district court

instruct the jury on the alternative liability theory as follows:

            Where the conduct of two or more actors
            causes an injury, and it is proven that
            harm has been caused to the Plaintiff by
            only one of them, but there is
            uncertainty as to which one has caused
            it, the burden is upon the Defendants
            Tierney, Gutierrez and Ruiz to prove


                                  -3-
             that none of them has not caused the
             harm, and that only Captain Urprasad
             did.

(emphasis added).   The language is drawn directly from the

Restatement (Second) of Torts, which provides that "[w]here the

conduct of two or more actors is tortious, and it is proved that

harm has been caused to the plaintiff by only one of them, but

there is uncertainty as to which one has caused it, the burden is

upon each such actor to prove that he has not caused the harm."

Restatement (Second) of Torts § 433B(3) (1965) (emphasis added);

cf. In re Agent Orange Prod. Liab. Litig., 597 F. Supp. 740, 822

(E.D.N.Y. 1984), aff'd sub nom. In re Agent Orange Prod. Liab.

Litig. MDL No. 381, 818 F.2d 145 (2d Cir. 1987) (citing Summers

v. Tice, 199 P.2d 1 (Cal. 1948)) (noting that alternative

liability theory applies where "two or more defendants have

independently breached a duty of care owed to [a] plaintiff[],

but it is impossible to determine . . . which one caused the

injury"); In re Methyl Tertiary Butyl Ether ("MTBE") Products

Liab. Litig., 447 F. Supp. 2d 289, 298 n.33 (S.D.N.Y. 2006).

           On its face, the alternative liability instruction De

Michele requested applies only where one of two or more

defendants, and only one, caused his injuries.   On the evidence

presented, however, no reasonable jury could have found that De

Michele's injuries were caused by only a single defendant.

Indeed, in response to direct questioning on the subject, De

Michele's own expert testified that "[i]t's like getting shot

twice.   You can't tell which one or both of them caused damage."




                                -4-
Thus, the district court was correct in concluding that the

instruction sought by De Michele lacked factual support.

2.   The Expert Testimony

             "We review a district court's evidentiary rulings for

abuse of discretion, and will reverse only for manifest error."

Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010)

(internal quotation marks omitted).     We find no abuse of

discretion here.     The district court acted within its discretion

in permitting the testimony of Dr. Marc Appel, who relied on De

Michele's medical records to provide his expert opinion regarding

alternative causes of De Michele's injuries.     Dr. Appel

testified, for instance, that De Michele's medical records

suggested that he did not suffer a torn labrum as a result of his

handling during the arrest, contrary to his contentions, and the

torn labrum that was later diagnosed was likely caused by

physical activities unrelated to his arrest.     This was relevant

testimony, and Dr. Appel was qualified to give it.

3.   The Alleged Cover-Up

             We similarly find no abuse of discretion in the

district court's decision to preclude as irrelevant evidence of

an alleged cover-up.     De Michele sought to introduce evidence

suggesting that the crew of a Westchester police helicopter saw

his arrest, but intentionally failed to record that arrest with

the helicopter's recording equipment so as to conceal the

excessive force allegedly used by defendants Tierney, Ruiz, and

Gutierrez.     There was, however, as the district court held, "no

evidence connecting the alleged cover-up actions of [the


                                  -5-
helicopter crew]" to Tierney, Ruiz, or Gutierrez.     Thus, the

district court did not abuse its discretion in concluding that

the evidence was not relevant to the claims against the

defendants on trial.

          We have considered all of defendants' remaining

arguments and conclude that they are without merit.     For the

foregoing reasons, we AFFIRM the judgment of the district court.

                              FOR THE COURT:
                              Catherine O'Hagan Wolfe, Clerk




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