13-3441-pr
D’Attore v. Salmon

                                      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.

       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 the 8th day of July, two thousand fourteen.

PRESENT:

           JOSÉ A. CABRANES,
           SUSAN L. CARNEY,
           CHRISTOPHER F. DRONEY,
                                Circuit Judges.
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GAETANO D’ATTORE.,

                     Plaintiff-Appellant,

                               -v.-                                                             No. 13-3441-pr

DEPARTMENT OF CORRECTIONS CAPT. SALMON, SHIELD
# 10315,

                     Defendant-Appellee,

CITY OF NEW YORK, DORA B. SCHRIRO, COMMISSIONER
NYC, DEPARTMENT OF CORRECTIONS,

                      Defendants.
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FOR PLAINTIFF-APPELLANT:                                                  JONATHAN J. WALSH (Kevin A. Meehan, on the
                                                                          brief), Curtis, Mallet-Prevost, Colt & Mosle
                                                                          LLP, New York, NY.




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FOR DEFENDANT-APPELLEE:                                           ELLEN RAVITCH (Pamela Seider Dolgow,
                                                                  Pernell Telfort, on the brief), for Zachary W.
                                                                  Carter, Corporation Counsel of the City of
                                                                  New York, New York, NY.

       Appeal from a judgment, entered August 13, 2013, of the United States District Court for
the Southern District of New York (Jed S. Rakoff, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiff Gaetano D’Attore, an inmate at Rikers Island, brought excessive force claims under
42 U.S.C. § 1983 against the City of New York, the Commissioner of the Department of
Corrections (“DOC”), and Corrections Officer Francis Salmon. He alleged that Salmon punched
him and pushed him, causing him to fall and resulting in exacerbations of previous injuries, as well
as new injuries. His claims against all defendants except for Salmon were dismissed on summary
judgment and are not appealed here.

        D’Attore proceeded to a jury trial against Salmon before the District Court. He called two
DOC doctors and he himself testified. The District Court excluded expert testimony from either
doctor, because they had not filed expert reports. After D’Attore rested, Salmon moved for
judgment as a matter of law (“JMOL”) under Federal Rule of Civil Procedure 50(a)(1). After brief
argument, the District Court granted JMOL in Salmon’s favor on two independent grounds: (1)
D’Attore failed to offer expert testimony as to causation for his injuries; and (2) D’Attore’s
testimony was so inconsistent as to be incredible as a matter of law.

        Even if the District Court erred in requiring an expert report for D’Attore’s treating
physicians,1 we conclude that any error was harmless because D’Attore has not demonstrated that
the ruling affected his substantial rights. See Boyce v. Soundview Tech. Grp., Inc., 

, 385 (2d
Cir. 2006). In any event, the District Court granted JMOL in Salmon’s favor on the independent
basis that D’Attore’s testimony was incredible as a matter of law. Cf. Jeffreys v. City of New York, 

, 555 (2d Cir. 2005).


         1 The plain language of Federal Rule of Civil Procedure 26—amended in 2010—does not require a report for
treating physicians, because they are not “retained or specially employed to provide expert testimony.” Fed. R. Civ. P.
26(a)(2). The Advisory Committee notes accompanying that amendment specifically address this issue:

         A witness who is not required to provide a report under Rule 26(a)(2)(B) may both testify as a fact
         witness and also provide expert testimony under Evidence Rule 702, 703, or 705. Frequent examples
         include physicians or other health care professionals and employees of a party who do not regularly
         provide expert testimony.

Fed. R. Civ. P. 26 adv. comm. nn. (2010 Amends., Subdiv. (a)(2)(C)) (emphasis supplied). We decline to decide now the
precise limits of the expert testimony a treating physician may give, but, under the amended Rule, a district court cannot
categorically require an expert report from a treating physician before qualifying him as an expert.


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       We have reviewed the record and considered all of D’Attore’s arguments on appeal and find
them to be without merit. Accordingly, we AFFIRM the judgment of the District Court entered
August 13, 2013.



                                            FOR THE COURT,
                                            Catherine O’Hagan Wolfe, Clerk of Court




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