     09-2560-cv
     Chen v. City of Syracuse

                          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 A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19 th day of July, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RICHARD C. WESLEY,
 9                DENNY CHIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Ling-Rong Chen,
14                Plaintiff-Appellant,
15
16                    -v.-                                               09-2560-cv
17
18       City of Syracuse, Joseph Reilly,
19       Syracuse Police Officer, and Henry
20       Burns, Syracuse Police Officer,
21                Defendants-Appellees,
22
23       John Does, Fictitious Names Intended
24       to be Police Officers, Employees of
25       the City of Syracuse Police Department
26       each individually and as Police
27       Officers of the City of Syracuse
28       Police Department, and Mark Kleist,
29                Defendants.
30       - - - - - - - - - - - - - - - - - - - -X
 1   APPEARING FOR APPELLANT:   JOSEPH S. COTE, Cote, Limpert &
 2                              Van Dyke, LLP, Syracuse, NY.
 3
 4   APPEARING FOR APPELLEES:   JESSICA M. McKEE (Mary Anne
 5                              Doherty, on the brief), Office
 6                              of the Corporation Counsel, City
 7                              of Syracuse, Syracuse, NY.
 8
 9        Appeal from a judgment of the United States District
10   Court for Northern District of New York (McCurn, J.).

11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.

14        Plaintiff, Ling-Rong Chen, appeals from a June 23, 2009
15   judgment of the United States District Court for the
16   Northern District of New York (McCurn, J.). Chen asserted
17   various state and federal law tort claims arising out of her
18   arrest by Syracuse police following an altercation at the
19   Syracuse International Airport. Judgment was entered for
20   the defendants following a jury trial. We assume the
21   parties’ familiarity with the underlying facts, the case’s
22   procedural history, and the issue presented for review.

23        Chen argues first that the district court should not
24   have permitted Michael Heenan to testify as an expert
25   because he was not properly identified pursuant to Federal
26   Rule of Civil Procedure 26(a)(2). Any error by the district
27   court was harmless. See Fed. R. Civ. P. 61. Heenan was
28   identified pretrial as a witness (albeit not an expert) who
29   would testify to the “use of force and the training in use
30   of force the Defendant police officers received.” Chen’s
31   thorough cross-examination of Heenan confirms that she was
32   neither surprised nor unprepared.

33        Chen next argues that the district court should not
34   have allowed the rebuttal testimony of David Mirizio because
35   he was not identified as a witness pursuant to Federal Rule
36   of Civil Procedure 26(a)(3)(A)(i). The Rule’s requirement
37   does not apply to evidence offered “solely for impeachment,”
38   Fed. R. Civ. P. 26(a)(3)(A), and Mirizio testified only for
39   the purpose of impeaching Chen’s testimony about the
40   November 15th incident. Cf. Hammel v. Eau Galle Cheese
41   Factory, 407 F.3d 852, 869-70 (7th Cir. 2005) (allowing
42   party to call a previously undisclosed rebuttal witness for
43   impeachment purposes). Indeed, it was not until trial that
44   Chen testified to the date of the November 15th incident.

                                  2
1         Third, Chen challenges the jury selection. She has
2    failed, however, to provide either a transcript of the jury
3    selection (she claims none was made), or a “statement of the
4    . . . proceedings” as permitted by Federal Rule of Appellate
5    Procedure 10(c). Absent any record or report of the
6    proceedings challenged, it is impossible for us to ascertain
7    and review the rulings at issue. The argument is
8    accordingly forfeited. See, e.g., Bogan v. City of Boston,
9    489 F.3d 417, 425 (1st Cir. 2007).

10        Finally, Chen argues that the district court should
11   have issued an adverse inference instruction to the jury
12   because the defendants failed to produce [i] a videotape
13   from a security camera in the Syracuse International
14   Airport’s northern terminal and [ii] video of the event
15   taken by an unaffiliated bystander. We review the district
16   court’s decision for abuse of discretion, Residential
17   Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d
18   Cir. 2002); and find none. With respect to the bystander
19   video, Chen does not argue (let alone demonstrate) that the
20   defendants ever “ha[d] control over the evidence,” id. at
21   107; she argues only that they failed somehow to obtain it.
22   And with respect to the northern terminal video, Chen has
23   not sufficiently established “that the destroyed evidence
24   was relevant to [her] claim . . . such that a reasonable
25   trier of fact could find that it would support that claim.”
26   Id. at 107 (internal quotation marks omitted). John Carni
27   testified that he declined to preserve the video because it
28   lacked useful--i.e., relevant--images. Chen’s evidence
29   rebutted that testimony only weakly, if at all. Officers
30   Kluge and Ware testified that there were cameras in the
31   vicinity of the Continental ticket counter, but neither
32   testified that any could or did videotape the counter. In
33   fact, Officer Ware’s testimony (that the closest camera had
34   only obscured views of the counter) tended to support
35   Carni’s testimony.

36        Finding no merit in Chen’s remaining arguments, we
37   hereby AFFIRM the district court’s judgment.

38
39
40                              FOR THE COURT:
41                              CATHERINE O’HAGAN WOLFE, CLERK
42




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