                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2007

Phillips v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4820




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Recommended Citation
"Phillips v. Philadelphia" (2007). 2007 Decisions. Paper 69.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/69


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                                                                   NOT PRECEDENTIAL


                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       NO. 06-4820


                                   RALPH PHILLIPS,
                                              Appellant

                                             v.

                     THE CITY OF PHILADELPHIA;
        MCDONNELL, PHILADELPHIA POLICE OFFICER, BADGE #6475;
           LAW, PHILADELPHIA POLICE OFFICER, BADGE #2734;
            INDIVIDUALLY AND AS POLICE OFFICERS FOR THE
                       CITY OF PHILADELPHIA



                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 05-cv-05348)
                       District Judge: Hon. Legrome D. Davis


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 10, 2007

                       BEFORE: RENDELL and STAPLETON,
                      Circuit Judges, and IRENAS, District Judge*

                           (Opinion Filed December 13, 2007)




*Hon. Joseph E. Irenas, Senior District Judge for the District of New Jersey, sitting by
designation.
                                OPINION OF THE COURT




STAPLETON, Circuit Judge:


       In this civil rights action, plaintiff/appellant Ralph Phillips alleges that the

defendants/appellee law enforcement officers used excessive force when arresting him.

Immediately prior to the commencement of trial, defendants moved to preclude Colleen

McDermott from testifying. During the first day of trial, the District Court heard

argument on the motion and instructed the parties to conduct a deposition of McDermott

that evening. The next day, after completion of the deposition, the District Court granted

the defendants’ motion. The jury returned a verdict in favor of the defendants, and this

appeal followed. Phillips raises one issue before us: whether the District Court

committed reversible error by precluding McDermott’s testimony.

       For the reasons set forth in the thorough order and memorandum of the District

Court dated November 29, 2006, we conclude that it did not abuse its discretion in

barring McDermott’s testimony. In contravention of the District Court’s pre-trial orders,

the existence of this eyewitness was not revealed by Phillips until the morning of trial.

She lived across the street from Phillips’ father’s house, the house where he was arrested,

and was well known to him, and he had no excuse for having earlier failed to discover

and identify her as a potential witness. Finally, as the District Court found, permitting

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McDermott to testify would have resulted in substantial prejudice:

      First, considering that this witness was identified for the first time to
      opposing counsel literally minutes before the start of trial, it is clear this late
      disclosure came as a great surprise to Defendants. Since Defendants knew
      nothing about the proposed witness, her background, or even what exactly
      her testimony was to be, her introduction on the first day of trial would have
      inured much prejudice to Defendants. Second, because of this complete
      lack of notice, it seems unlikely that Defendants could have, even by the
      second day of trial, conducted any meaningful investigation or additional
      discovery as may have been required to mitigate any of the prejudicial
      effect. Third, allowing Plaintiff’s additional witness in the middle of trial
      would wreck havoc on the orderly and efficient trial of this case, as both
      parties have already presented their opening arguments and thus have
      committed to their respective theories of the case; to the extent Defendants
      may desire to alter their trial plan given Ms. McDermott’s new testimony,
      they will be very limited in their ability to do so at this stage of trial.

Supp. App. at 5-6.

      The judgment of the District Court will be affirmed.




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