Suriel v. Port Authority of New York And New Jersey et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MEMORANDUM & ORDER
19-CV-3867 (ENV) (ST)
FRANCISCO SURIEL,
Plaintiff,
-against-
PORT AUTHORITY OF NEW YORK AND NEW
JERSEY; Police Officer ANDREW SAMUEL, Shield No.
3331; POLICE OFFICER BRETT TELESFORD,
Defendants.
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VITALIANO, D.J.
From the opening gun, defendants have incessantly sought a way to use a surveillance
video of plaintiff Francisco Suriel captured years after he sustained his alleged injuries and
following his return to work as a licensed for-hire transport driver. The video was promptly turned
over to plaintiff now more than two years ago. Defendants have attempted to cabin their proffer
within the Court’s in limine ruling holding that the video might be used for a proper
“impeachment” purpose. In their initial foray, an attempt to use the surveillance video to impeach
the testimony of Suriel himself, they fell short of the mark. They now seek to pounce on the
testimony of Dr. George DiGiacinto, a neurosurgeon called as an expert by plaintiff, to impeach
his medical opinion as to the severity, duration, and limiting effects of the injuries plaintiff claims
were inflicted upon him by defendants.
Surveillance video, of course, can be used in appropriate circumstances to impeach other
evidence admitted at trial. See, e.g., Rodriguez v. United States, No. 23-CV-5948, 2026 WL
1971325, at *7 n.7 (E.D.N.Y. July 8, 2026). With Dr. DiGiacinto’s testimony providing a fresh
opportunity, defendants renewed their quest to use the surveillance video. The Court granted them
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an opportunity to examine Dr. DiGiacinto and attempt to shoehorn the surveillance video within
“appropriate circumstances” justifying its use for impeachment purposes. In their examination,
defendants posed hypotheticals that mirrored the images on the surveillance video and secured
somewhat waffling responses from Dr. DiGiacinto, who posited that the hypotheticals might affect
his opinion to some degree. See Trial Tr. 793:1-794:17, October 13, 2026. The Court reserved
decision and excused Dr. DiGiacinto from the stand, instructing him that he was subject to recall
by the Court. The trial continued on to other areas and the parties continued to supplement their
arguments on the issue reserved for decision.
In the end, the Achilles heel in defendants’ argument to use the surveillance video to
impeach Dr. DiGiacinto’s expert opinion is the same as what prompted the Court to deny
defendants’ application to use the surveillance video to impeach plaintiff’s testimony. This is not
the traditional case where the injured party claims that he could not perform certain activities and,
lo and behold, out comes the surveillance video showing the plaintiff performing the very activities
he claimed on the stand he could not perform. Impeachment! See Rodriguez, 2026 WL 1971325,
at *7 n.7. Here, there is no activity depicted on the proffered surveillance video that plaintiff said
he could not perform. His claim was that when he returned to work, he could perform the activities
he used to perform, but there would often be pain. See Trial Tr. 210:1-24, October 7, 2026; see
Trial Tr. 89:5-90:13, October 6, 2026. The surveillance video does not impeach that testimony;
nor does it impeach the opinion of Dr. DiGiacinto that is derivative from it. See U.S. v. Trzaska,
111 F.3d 1019, 1024-25 (2d Cir. 1997) (holding that evidence must be “inconsistent” for
impeachment purposes, defined as “any variance between the [evidence] that has a reasonable
bearing on credibility”) (citation omitted). And, as the Court made clear from its in limine rulings,
the surveillance video would be precluded unless used for impeachment purposes. See Order, Dkt.
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160. There being no proper impeachment purposes, it is precluded.
It begs the question: Why would defendants seek to use the video at all if it arguably
bolsters the testimony of plaintiff? The answer, presumably, is that the real purpose of the video
is not to show objective evidence of conduct inconsistent with the claim, but to argue something
that is purely speculative—that is, the objective conduct depicted was performed without the pain
plaintiff claimed. That invitation to speculate is highly prejudicial and, therefore, even if the
surveillance video was otherwise probative and appropriate impeachment evidence, this
unmistakable invitation to speculate as to the level of plaintiff’s pain would run afoul of Rule 403.
See Fed. R. Evid. 403 (“The Court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of… unfair prejudice”); see U.S. v. Abel, 469 U.S. 45, 54,
105 S.Ct. 465, 470, 83 L.Ed. 2d 450 (1984) (“A district court is accorded wide discretion in
determining the admissibility of evidence under the Federal Rules,” including Rule 403).
Though the surveillance video is not one of them, there are other arrows in defendants’
impeachment quiver. Defendants are free to confront Dr. DiGiacinto with plaintiff’s trial
testimony as to his ability to perform his past work activities. There are also records from the Taxi
and Limousine Commission showing that plaintiff logged more trips in comparable time periods
after his return to work than he did before his claimed injury. See Trial Tr. 185: 7-22, 186:4-15,
October 7, 2026. There may be other such evidence beyond that which is surfaced so far at trial.
Dr. DiGiacinto is subject to recall and, if defendants request, the Court will order him recalled and
their cross-examination of him may continue. If defendants do wish to avail themselves of that
opportunity, they are directed to advise the Court by the close of business on Friday, October 16,
2026. Their application to use the surveillance video to impeach Dr. DiGiacinto’s testimony and
opinion, however, is denied.
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So Ordered.
Dated: Brooklyn, New York
October 15, 2026
/ s / Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge
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