James Benbow v. Police Officer Brian Feeley; Police Officer Matthew Rosiello

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UNITED STATES DISTRICT COURT                                              
EASTERN DISTRICT OF NEW YORK                                              
-----------------------------------                                       


JAMES BENBOW,                                                             
                                   MEMORANDUM & ORDER                
               Plaintiff,          17-CV-6457(EK)(JRC)               


             -against-                                               


POLICE OFFICER BRIAN FEELEY; POLICE                                       
OFFICER MATTHEW ROSIELLO,                                                 

               Defendants.1                                          

-----------------------------------                                       

ERIC KOMITEE, United States District Judge:                               
     Trial is scheduled to begin shortly in this case.               
Plaintiff Benbow and individual defendants have submitted                 
various motions in limine.  See ECF Nos. 140-41 and 150-51.  The          
Court resolves several of those motions as follows, and reserves          
judgment on any motion not expressly addressed herein.2                   
     Bifurcation (Defendants).  Defendants seek to                   
bifurcate the trial into liability and damages phases.  That              
motion is granted.  Bifurcation will serve the interest of                
judicial efficiency in this case, given the multiple witnesses            

1 The Clerk of Court is respectfully directed to amend the case caption 
to conform to the above, as the existing caption referred to several parties 
that have since been dismissed.                                           

2 Judge Marutollo granted Benbow’s request, on consent, to wear civilian 
clothing during the jury selection process.  See ECF No. 169.  Benbow is  
hereby also permitted to wear civilian clothing for the duration of trial. 
whose proposed testimony will relate primarily or solely to               
damages.                                                                  
     Motion to Preclude Plea Allocution (Benbow).  Benbow            
seeks to preclude defendants from introducing the transcript of           
his guilty-plea allocution in the underlying criminal case                
(which resolved in his favor on appeal).  But Benbow cites no             

basis for excluding the transcript under the Federal Rules of             
Evidence.  See ECF No. 151-1, at 12-13.  He instead points to a           
state statute providing that criminal cases terminated in favor           
of the accused should be sealed.  Id. (citing CPL 160.50(1)(c)).          
That statute has no bearing on the admissibility of evidence in           
this action.  Indeed, the transcript of the allocution has                
appeared on the public docket in this case for some time because          
Benbow provided it to the defendants without seeking sealing or           
a protective order.  See ECF No. 98-26 (transcript).  The motion          
is accordingly denied.                                                    
     Motion to Judicially Estop Benbow from Contending That          

He Did Not Possess a Firearm (Defendants).  Defendants argue              
that the same plea allocution should judicially estop Benbow              
from testifying or arguing that he did not possess a firearm at           
the time of the shooting incident.  The Court disagrees.                  
Judicial estoppel requires “(i) that the party against whom the           
estoppel is asserted took an inconsistent position in a prior             
proceeding and (ii) that that position was adopted by the first           
tribunal in some manner, such as by rendering a favorable                 
judgment.”  Clark v. AII Acquisition, LLC,
886 F.3d 261, 266
(2d          
Cir. 2018).3  Neither prong is clearly met here.  The portion of          
Benbow’s plea allocution that defendants reference in their               
motion, ECF No. 150-1, at 13, contains at least some residual             
ambiguity.  And Benbow’s plea, while accepted by the trial                

court, was ultimately vacated on appeal.                                  
     Benbow will be permitted to testify and argue that he           
did not possess a firearm.  However, the Court will not admit             
testimony or argument regarding the legal issues or the                   
determination rendered on appeal in the underlying criminal               
action.                                                                   
     Motion to Exclude the Testimony of Joseph A. Pollini,           
Howard J. Ryan and James P. Molinaro, Dr. Dainus A. Drukteinis,           
Dr. Troy Caron, and Dr. Jeffrey R. Gardere (Defendants).                  
Defendants move to exclude Benbow’s experts entirely.  This               
motion is granted in part and denied in part.  Benbow’s experts           

will generally be permitted to testify regarding crime scene              
reconstruction, the location and extent of Benbow’s physical              
injuries, and the psychological impact of the shooting, to the            
extent that testimony is based on conclusions properly laid out           
in their reports.  The Court will entertain specific objections           

3 Unless otherwise noted, when quoting judicial decisions this order 
accepts all alterations and omits all citations, footnotes, and internal  
quotation marks.                                                          
to these experts’ testimony, as appropriate, notwithstanding the          
denial of the request to exclude them entirely.                           
     Given the number of experts Benbow has proffered, he            
is advised that his experts should not duplicate each other’s             
testimony.  And both sides are reminded of the time limits the            
Court set.                                                                

     Joseph A. Pollini.  Defendants’ motion to exclude               
Mr. Pollini is granted.  Mr. Pollini offers three main                    
conclusions: (1) defendants used excessive force; (2)                     
defendants’ use of force violated New York City Police                    
Department (NYPD) policy and procedures; and (3) the NYPD failed          
to properly monitor, supervise, and discipline their officers.            
ECF No. 174-1, at 9-10.  The first conclusion regards the                 
ultimate legal issue in this case and is clearly impermissible.           
United States v. Bilzerian,
926 F.2d 1285, 1295
(2d Cir. 1991).           
The last conclusion is irrelevant and likely to lead to                   
confusion under Federal Rules of Evidence 401 and 403, as this            

Court already dismissed Benbow’s Monell claim.  See ECF No. 122.          
Finally, while defendants’ failure to comply with NYPD policy             
and procedures is arguably relevant, Mr. Pollini’s curriculum             
vitae reveals no expertise in that field.  His testimony is               
therefore excluded.                                                       
     Dr. Dainus A. Drukteinis.  Defendants object to Dr.             
Drukteinis’s testimony to the extent that (1) he does not lay             
out his specific methodology; and (2) certain of his opinions go          
beyond his expertise.  ECF No. 141-1, at 17-19.  Dr. Drukteinis           
will be permitted to testify to the location of Benbow’s bullet           
wounds based on his examination of the medical records and his            
own medical experience.  However, his opinion that the bullet             
wounds led to Benbow’s current injuries goes beyond his                   

expertise.  As defendants note, Dr. Drukteinis is trained in              
emergency medicine, not neurology.  Finally, insofar as Dr.               
Drukteinis intends to testify that Benbow was “struck by three            
bullets” and not simply that he “sustained three bullet wounds            
to his external skin,” see id. at 18, the Court reserves                  
judgment regarding the admissibility of that opinion.  The basis          
for such an opinion is unclear from Dr. Drukteinis’s report.              
Benbow should offer any clarification he can forthwith and, in            
any event, no later than end of day on Wednesday, October 22.             
     Howard J. Ryan and James P. Molinaro.  Defendants’              
motion to exclude testimony based on Mr. Ryan and Mr. Molinaro’s          

joint report effectively amounts to (1) an objection to                   
Dr. Drukteinis’s report, on which they rely; and (2) an                   
objection to their conclusions.  Id. at 19-20.  As discussed              
above, Dr. Drukteinis will be permitted to testify regarding the          
location of Benbow’s bullet wounds, so Mr. Ryan and Mr. Molinaro          
may reference those conclusions after such testimony.  And “gaps          
or inconsistencies in an expert’s reasoning, or arguments that            
an expert’s conclusions are wrong, go to the weight of the                
evidence, not to its admissibility.”  M.B. ex rel. Scott v. CSX           
Transp., Inc.,
130 F. Supp. 3d 654, 665
(N.D.N.Y. 2015)                   
(quoting Campbell v. Metro. Prop. & Cas. Ins. Co.,
239 F.3d 179,          
186
(2d Cir. 2001)).  Defendants’ motion to exclude Mr. Ryan and          
Mr. Molinaro is accordingly denied.                                       

     Dr. Troy Caron.  Defendants object to Dr. Caron’s               
testimony to the extent that his report (1) does not clearly              
state the factual basis for his conclusions; (2) is based solely          
on his experience; (3) is confusing; and (4) is undercut by               
Benbow’s own testimony.  ECF No. 141-1, at 21-24.  Expert                 
testimony can rely on “personal knowledge or experience.”  Kumho          
Tire Co. v. Carmichael,
526 U.S. 137, 150
(1999).  And, insofar           
Benbow’s testimony regarding his paralysis undermines Dr.                 
Caron’s conclusions, “it is up to the opposing party to examine           
the factual basis for the opinion[s] in cross-examination.”               
Clark v. Travelers Companies, Inc., No. 16-CV-2503,
2020 WL               

473616
, at *5 (E.D.N.Y. Jan. 29, 2020).                                   
     Still, as defendants correctly observe, it is entirely          
unclear from Dr. Caron’s report which medical records he is               
basing his opinions on.  For this reason, the Court reserves              
judgment on the motion.  Benbow should offer any clarification            
he can forthwith and, in any event, no later than end of day on           
Wednesday, October 22.                                                    
     Dr. Jeffrey R. Gardere.  Defendants object to                   
Dr. Gardere’s report to the extent that it (1) consists of                
factual narrative; (2) relies on insufficient data and analysis;          
and (3) fails to engage in meaningful differential diagnosis.             
ECF No. 141-1, at 24-26.  While Dr. Gardere will not be                   
permitted to engage in lengthy factual recitation intended to             

bolster Benbow’s testimony, statements Benbow made to him for             
the purpose of medical diagnosis are admissible.  Fed. R. Evid.           
803(4); see generally Smith v. Arizona,
602 U.S. 779
(2024)               
(describing limits on experts’ reliance on testimonial hearsay).          
Defendants’ other objections are matters for cross examination.           
     Motion to Exclude the Testimony of George G. Krivosta           
(Benbow).  Benbow moves to exclude defendants’ expert, George G.          
Krivosta.  The motion is granted in part.  At the Court’s                 
request, see Minute Entry dated October 10, 2025, Benbow                  
provided an annotated copy of Mr. Krivosta’s report,                      
highlighting the specific portions of the report to which he              

objects and the bases for his objections.  ECF No. 166-1.  The            
Court will address the highlighted portions of the relevant               
paragraphs in turn:                                                       
•    Paragraph 2:  To the extent that Mr. Krivosta intends           
     to rely on Benbow’s x-ray images not for the purpose            
     of offering medical testimony but to explain the                
     trajectory of bullets and shrapnel, the motion to               
     preclude his use of these images entirely is denied.            
     The Court will entertain more individualized                    
objections to specific images if they are being                 
introduced for improper purposes.                               
•    Paragraph 10:  To the extent that Mr. Krivosta’s                
statement that “[t]he weapon identified as Lab #2015-           
018912 Item #1 was in the possession of the Plaintiff           
James Benbow” is predicated on hearsay from fact                
witnesses, the motion to exclude this testimony is              
granted.  See discussion of Paragraph 11, below.                
•    Paragraph 11:  Benbow’s motion to preclude Mr.                  
Krivosta from testifying to “report[s]” regarding               
Benbow’s possession and brandishing of a weapon during          
the shooting incident is granted.  Generally speaking,          
an expert “can testify to opinions based on                     
inadmissible evidence,” including some hearsay.                 
United States v. Mejia,
545 F.3d 179, 197
(2d Cir.              
2008).  But “[t]he expert may not . . . simply                  
transmit that hearsay to the jury” — instead, she must          
“must form [her] own opinions by applying [her]                 
extensive experience and a reliable methodology to the          
inadmissible materials”.
Id.
•    Paragraph 20:  “[R]eport[s]” that Benbow’s jacket was           
“unzipped during the shooting incident” are likewise            
excluded as impermissible hearsay.  As for testimony            
regarding “[m]edical x-rays,” see the above discussion          
of Paragraph 2.                                                 
•    Paragraph 21:  The bases and reasons for Mr.                    
Krivosta’s conclusion that “[a] bullet initially                
struck a buckle and created an atypical bullet hole             
entrance” remain unclear.  It is likewise unclear how           
Mr. Krivosta’s conclusion that “[t]he trajectory of             
this shot would have had Benbow facing in the general           
direction of Feeley” follows from the preceding                 
recitation in his report.  The Court reserves judgment          
on Benbow’s motion to exclude this testimony.                   
Defendants should offer any clarification they can              
forthwith and, in any event, no later than end of day           
on Wednesday, October 22.                                       
•    Paragraphs 25-27:  Testimony of this nature will                
generally be precluded.  While an expert can assume             
certain facts and draw conclusions thereupon, he                
cannot simply engage in factual recitation.  See                
United States v. Amuso,
21 F.3d 1251, 1263
(2d Cir.             
1994) (“A district court may commit manifest error by           
     admitting expert testimony where the evidence                   
     impermissibly mirrors the testimony offered by fact             
     witnesses.”).                                                   
     However, Mr. Krivosta’s conclusion that “[t]he                  
     trajectory of the bullet fired by P.O.                          
     Rosiello . . . supports Mr. Benbow’s lower body facing          
     in the general direction of P.O. Feeley” will be                
     permitted, provided an adequate foundation is laid.             
     The Court reserves judgment on the admissibility of             
     Mr. Krivosta’s conclusion that “the recovered position          
     of the loaded Star PD .45 Auto caliber semiautomatic            
     pistol ‘SF1’ . . . supports the direction that Mr.              
     Benbow was traveling.”  It remains unclear how this             
     conclusion follows from the preceding analysis.                 
     Defendants should offer any clarification they can              
     forthwith and, in any event, no later than end of day           
     on Wednesday, October 22.                                       
  •  Paragraph 38:  To the extent that Mr. Krivosta’s                
     conclusion that “Mr. James Benbow [was] clearly in              
     possession of a loaded large caliber semiautomatic              
     pistol” is predicated on hearsay from fact witnesses,           
     that opinion will be excluded.  Mr. Krivosta will also          
     be precluded from testifying that defendant Rosiello            
     fired his gun after “seeing his partner at risk.”  “It          
     is well settled that an expert cannot offer evidence            
     about a party’s state of mind.”  In re Namenda Direct           
     Purchaser Antitrust Litig., No. 15-cv-7488,
2019 WL             
     6242128
, at *8 (S.D.N.Y. Aug. 2, 2019).                         
  •  Paragraphs 39-40:  This testimony is excluded as                
     beyond the scope of Mr. Krivosta’s expertise.  Mr.              
     Krivosta has not been presented as an expert in police          
     tactics and training or psychology.  He therefore has           
     no basis for testifying to, e.g., the length of time            
     it takes an officer to cease firing their weapon after          
     a threat abates or an order to cease firing has been            
     given.                                                          
     SO ORDERED.                                                     
                                                                          
                           /s/ Eric Komitee                          
                         ERIC KOMITEE                                
                         United States District Judge                


Dated:    October 20, 2025                                                
     Brooklyn, New York