: CIVIL ACTION NO.: I l-1009-I-KMW

V.

Trooper J.T. Squire-Tibbs (Badge # 6760)

JURY TRIAL DEMANDED

And

John Does 1-10 : JOINT FINAL PRE-TRIAL ORDER

Defendants.

Plaintiff, Robert Michael “Mike” French and Defendant, Trooper Jason Squire-Tibbs

hereby submit the Final Pre-Trial Order pursuant to Rule 16, Federal Rules of Civil Procedure.

This Joint Final Pre-Trial Order shall govern the conduct of the trial of this case. Amendments

to this Order will be allowed only in exceptional circumstances to prevent manifest justice. See

Fed.R.Civ.P. 16(e). Counsel are urged to move to amend in a timely fashion any portion of the

Order that must be changed or modified between the filing of this Order and the trial date. which

has not been set in this matter.

APPEARANCES:

Matthew 13. Weisberg

Graham F. Baird

Weisberg Law. PC.

7 S. Morton Avenue

Mor{oii, PA 19070

Tel. 610.690.0801

Fax: 610.690.0880

rn weisheru’ eisberlawotfices.com

Christopher R. Paldino

Wolff’& Samson, P.C.

One Boland Drive

\Vesj Oranee, NJ 07052

Tel.: 973.325,1500

Fax: 973.530.2231

gpjldino(i)woIffsanison.com

ubairdi \eisherala\\oflIces.com

Attorneys for Plaintift \like French

Attorney for Defendant

Trooper Jason Squire-Tibhs

4154967.1
Tibbs denies Mr. French’s al1eLations and maintains that his use of force was objectively

reasonable given the circumstances of the encounter and therefore did not violate Frenchs

Fourth Amendment Rights.

4154967.1
tests, which Plaintifffailed.

3. Plaintiff was arrested by Trooper Costa.

4. After being arrested, Plaintiff was transported to the New Jersey State Police

Barracks in Moorestown. New Jersey.

5. Trooper Tibbs heard Trooper Costa’s arrest of the Plaintiff over the police radio

and reported back to the barracks station to assist Trooper Costa.

6. Shortly thereafter, Trooper Tibbs arrived at the Moorestown Station, went inside,

and began preparing to assist Trooper Costa in the processing ofthe Plaintiff.

7. While preparing preliminary paperwork, Trooper Tibbs observed Trooper Costa

walk into the station with the Plaintiff and escort him into the holding cell.8. French was placed in a holding cell with another individual named ‘Mr. Baik.”

9. After being placed into the holding cell, Plaintiff got into an argument and then a

physical altercation with Mr. Baik in the holding cell.

10. As a result ofthe encounter with Plaintiff, Trooper Squire-Tibbs sustained a cut to

his left hand, his non-dominant hand.

4154967.1
2. Plaintiff was in a pushing and shoving scuffle instigated by another prisoner

named Mr. Baik. Both men were pushing and shoving, and scuffling and Plaintiff shoved Baik

in the chest several times.

3. Plaintiff then heard the cell door click open, and Plaintiff observed Defendant

Squire-Tibbs hit Plaintiff in the face, out of the corner of his eye, with an object Plaintiff

believed to be a club.

4. Defendant Squire-Tibbs struck Plaintiff fracturing his orbital and knocking him

unconscious.

5. Plaintiff did not hear the police officers present at the time of the incident, Squire

Tibbs. Wisenauer or Costa yell any commands at him to stop or to back away from Baik.

6. Plaintiff remembers Squire-Tibbs stomping on his arms while he was on the

ground.

7. At no time did Defendant announce his presence to Plaintiff

8. At no time did Defendant. Squire-Tihbs. order or otherwise instruct Plaintiff to

disengage the other prisoner.

9. Due to the excessive force used by Squire-Tibbs. Plaintiff was treated at Our Lady

of Lourdes T lospital, where he was diagnosed with a fractured orbital. a herniated disc and severe

concussion.

4154967.1
12. As a result of being struck by Defendant, Plaintiff sustained a serious and

permanent neurological, orthopedic and plastic surgical injuries, including a blowout fracture of

the left orbit with cosmetic alteration, flattening ofthe bones and a persistent feeling of weakness

within the left eye.

13. Plaintiff never swung upon or attempted the punch the other troopers involved in

the incident.

14. Had the officers ordered Plaintiff to get on the ground, he would have gotten on

the ground.

15. Plaintiffremembers almost nothing from the incident other than being hit initially

by the Defendant and falling to the ground. He then lost consciousness.

16. Mr. Baik was never treated by the EMS services.

17. Plaintiffs arms were stomped on while he was on the ground.

4154967.1
Plaintiffs interest in his personal liberty, security and safety was interfered with by

Defendant Squire-Tibbs.

Plaintiff will seek to enter evidence to establish Plaintiffs right to iecover punitive

damages against Defendant.

That Plaintiffsustained mental anguish and humiliation as a result ofthe assault.

Plaintift if he prevails on his claims, will also be entitled to an award of attorneys fees.

4154967.1
• Before Trooper Tibbs

use of force, Plaintiff either disregarded or did not respond

to the troopers repeated instructions to stop his assault of the other detainee.

• Before Trooper Tibbs’ use of force, Plaintiff threw punches in the direction of

Sergeant Wisenauer and Trooper Tibbs.

• Trooper Tibbs did not strike Plaintiff with a billy club or any other object at any time during their encounter.

2. I)efendant intends to prove the following contested facts with regards to damages:

• Plaintiff did not suffer any permanent injuries as a result of Trooper Tibbs’ use of

force;

• Plaintiff did not suffer any lost wages and any lost time from work;

• Plaintiff did not suffer any out-of-pocket medical expenses:

• Even if Plaintiff proves his entitlement to compensatory damages. Plaintiff is not

entitled to punitive damages

4154967.1
A. Plaintiffs witnesses and summary oftheir testimony:

Plaintiffintends to call the following witnesses with regards to liability and damages and anticipates they will testify as follows:

(1) Plaintiff, Robert Michael French, of 1521 Scarborough Court, West Chester, Pennsylvania will testify as to what occurred on the date of the incident

between himself and Defendant Squire-Tibbs, as well as his damages that he sustained as a result ofthe altercation.

(2) Victoria French, of 1521 Scarborough Court, West Chester, Pennsylvania will testify as to her ex-husband’s damages, as well as the events that occurred after the incident.

(3) Plaintiffwill call Trooper Paul Costa who is expected testify as to what he

saw during the date ofthe incident;

(4) Plaintiffintends to call Trooper K. Wisenauer who is expected to testify as to what he witnessed on the date ofthe incident

(5) Nan Soo Balk, address unknown, who is expected to testify as to what he witnessed on the date ofthe incident.

(6) Dr. Michael Krafchick of Glen Mills, Pennsylvaniawho is expected to testify as to Plaintiffs medical treatment, injuries and damages;

(7) Dr. Bruce Grossinger, D.O., CIME, of Ripley Park Medical Center, 23 Cester Pike, Ste., 301, Ridley Park, PA who is expected to testify as to Plaintiffs injuries, medical treatment and damages;

(8) Sergeant Runawitz, New Jersey State Police, who is expected to testify as to the internal investigation conducted concerning this incident;

(9) Custodians ofrecords for admissibility and authentication purposes;

(10) Dr. Mark Reutter, of Kennedy Health System, Stratford, NJ is expected to testify as to Plaintiffs medical treatment, injuries and damages;

4154967.1
is expected to testify as to Plaintiffs medical treatment, injuries and damages.

B. Defendant’s objection to Plaintiffs witnesses:

Defendant objections to the witnesses listed below for the following reasons:

5. Nan Soo Baik: The parties were unable to find Mr. Baik during discovery. Upon information and belief, the parties believed that Mr. Baik had been

deported. If Plaintiff was successfully able to locate Mr. Baik, he never amended his answers to interrogatories to reflect as much.

6. Dr. Michael Krafchick: Defendant objects to Dr. Krafchick testifying as

an expert in this matter. Dr. Krafchick was not identified as an expert and Plaintiff has not served either an expert report of a CV from Dr. Krafchick. Defendant has no objection to Dr. Krafchick testifying as a fact witness. Dr. Krafchick. however, should not be permitted to testify as to any opinions that he may have regarding Plaintiffs injuries.

8. Sergeant Runawitz: The details, opinions, and conclusions of any internal investigation are confidential. Plaintiff cannot compel any testimony or evidence from the investigators.

41 54967,1
Address: New Jersey State Police

River Road

West Trenton, New Jersey 08628

Testimony: Trooper Tibbs will testify as to his overall encounter with PlaintiffHe will testify as to the observations he made regarding Plaintiffs assault on

another prisoner, Plaintiffs disregard of the troopers’ instructions to stop his assault, and to the other factors that led him to utilize the force that he did.

Trooper Tibbs will testify that he did not utilize any of the force that Plaintiffasserts. i.e. striking Plaintiff with a billy club and/or stomping him while he was

on the ground. Trooper Tibbs will testify as to several facts that are inconsistent

with Plaintiffs allegation that he was struck with a hilly club. Trooper Tibbs will also testify to the observations of Plaintiffs conduct and statements made in the

hospital following their encounter.

Trooper Paul Costa:

Address: New Jersey State Police

River Road

West Trenton, New Jersey 08628

Testimony: Trooper Costa will testify as to his overall encounter with Plaintiff

He will testify as to the observations he made regarding Plaintiffs driving, his performance of field sobriety tests, and his decision to arrest Plaintiff for DWI.

Trooper Costa will also describe Plaintiffs assault on another prisoner. Plaintiffs disregard of the troopers’ instructions to stop his assault, and to the other factors

that lcd to Trooper Tibhs’ use of force. Trooper Costa will testify that he did not observe any trooper strike PlaintifT with a billy club, Trooper Costa will also tcsifv to the observations of Plaintiffs conduct and statements made in the

hospital following their encounter,

4154967.1
Plaintiff. He will testify as to the observations he made regarding Plaintiffs assault on another prisoner. Plaintiffs disregard of the troopers’ instructions to

stop his assault, and to the other factors that led him to utilize the force that he

did, Sergeant Wisenauer will testify that neither he nor Trooper Tibbs used any of the force that Plaintiff asserts, i.e. striking Plaintiff with a billy club and/or stomping him while he was on the ground. Sergeant Wisenauer will also testify to the observations of Plaintiffs conduct and statements made in the hospital following their encounter.

Andrew J. Scott, III:

Address: AJS Consulting. Inc.

750 Elm Tree Lane

Boca Raton, Florida 33486

festimon: Mr. Scott is an expert in police procedures and use of force. Mr. Scott will testify as to his qualifications, his review of the pertinent records. and his review of the pertinent Attorney General and New Jersey State Police guidelines and policies. Mr. Scott will testify as to his opinions in this case, i.e. that the use of force utilized against Plaintiff was objectively reasonable and in accordance with known and accepted police practices. Further, Mr. Scott will testify, based

on his knowledge and experience that the injuries suffered by Plaintiff were not consistent with being struck with a billy club or expandable baton.

41 54967.1
2 East Gates

Philadelphia, Pennsylvania 19104

Testimony: Dr. Nichols is an ophthalmologist that performed an IME of Plaintiff in order to address the various ocular and orbital bone injuries alleged in this case. Dr. Nichols will testify as to his qualifications, his review of the pertinent medical records, and to his examination of the Plaintiff. Dr. Nichols will testify as to his opinions in this case. i.e. that Plaintiff did not suffer any objective, permanent injuries to his vision or his orbital bones.

Dr. Ronald Gerson

Address: Central Orthopedic Associates

820 S. White Horse Pike

Hammonton, New Jersey 08037

Testimony: Dr. Gerson is an orthopedic surgeon that performed an IME of Plaintiff in order to address the various orthopedic injuries alleged in this case. Dr. Gerson will testify as to his qualifications, his review of the pertinent medical records. and to his examination of the Plaintiff. Dr. Gerson will testify as to his opinions in this case. i.e. that Plaintiff did not suffer any objective, permanent injuries to his cervical spine and/or his hip.

D. Plaintifis objections to Defendant’s witnesses:

Plaintiff objects to the testimony of Andrew J. Scott, III on the grounds that his purported

methodology is inadmissible subject to the i)aubert test. His testimony is unnecessarily

duplicative and does not aid the trier of fact in making an ultimate determination of a legal issue/.

Finally. Scott is unqualified to testify as to the Plaintiff’s injuries and causation of those injuries.

4154967.1
q

y be read into the record at the time the expert takes the stand, and no opposing counsel shall be permitted to question the qualifications of the expert unless the basis of the objection is set forth in this Final Pretrial Order. No expert will be permitted to testify at trial unless all opposing counsel has received the curriculum vitae of the expert and the information required by Fed. R. Civ. P. 26 (a)(2) as directed in the Scheduling Order.

If any hypothetical questions are to be put to an expert witness on direct examination. they shall be written in advance and submitted to the court and counsel prior to commencement of trial.

1. Plaintiffs expert witnesses are:

a. Bruce Grossinger, D.O.

2. Defendant’s objection to the qualifications of plaintiff’s expert witnesses arc:

a. Bruce Grossinger, D.O.: Defendant has no objection to Dr. Grossinger testifying as an expert in neurology, pain medicine/management, and electrodiagnostic medicine. Defendant would object to the extent that Plaintiff intends to call or have Dr. Grossinger recognized as an expert in orthopedics, orthopedic surgery, and/or plastic surgery.

3. Defendant’s expert witnesses are:

a. Andrew J. Scott, III

b. Charles Nichols, MD

c. Ronald Gerson, MD

All CV’s are attached as per the Court’s instructions. Summaries of their anticipated testimony is included in Part V above,

3. Plaintiffs objections to the qualifications of Defendant’s expert witnesses

are:

4154967.1
4154967.1
q

ed to list exhibits that will be used, if at all, only for impeachment purposes.

Counsel are reminded that each such exhibit shall be physically pre-marked corresponding to the designation below. Copies of exhibits lists shall be provided to the District Judge and the assigned court reporter at the time of trial.

A. Plaintiff’s Exhibits

1. Plaintiff intends to introduce the following exhibits into evidence (list by numbers with a description of each exhibit):

1. Deposition transcript of Jason Squire-Tibbs.

2. Deposition transcript of Paul Costa.

3. Deposition transcript of Keith Wisenauer.

4. Responses to Interrogatories ofJason Squire-Tibbs.

5. IME Report of Bruce Grossinger, D.O.

6. Medical Records of Plaintiffs treatment from Kennedy Health System. Cherry Hill, NJ.

7. Medical Records of Defendant’s treatment from Kennedy Health System, Cherry Hill, NJ.

8. Radiology Report CCT-00l3 Facial Bones WO Contrast,

performed by Mark Rcutter. DO.

Deposition Transcript of Victoria French.

1 0. Reportable use of force and supplemental use of force reports prepared by Troopers Wisenauer, Costa and Defendant.

II. SIMS Fact Briefing Sheet, prepared by Trooper Costa,

12. Mount Laurel EMS medical records.

41 54967.1
4—8-- Documents attached to motion for summary judament.

2. Defendant objects to the introduction of plaintiff’s exhibit (set forth number of exhibit and grounds for objection):

Defendant reserves the right to make objections at trial as to admissibility of

certain documents and/or portions thereof, pursuant to the Federal Rules of Evidence.

41 54967.1
D3- SIMS Fact Briefing Sheet prepared by Trooper Costa

D4- Supplemental Investigation Report prepared by Trooper Tibbs

D5- Reportable Use of Force Report prepared by Trooper Tibbs

D6- Reportable Use of Force Report prepared by Sergeant Wisenauer

D7- Reportable Use of Force Report prepared by Trooper Costa

D8- Investigation Report prepared by Trooper Costa

D9- Supplemental Investigation Report prepared by Sergeant Wisenauer

Dl 0- Toxicology Analysis

Dli - DVD Containing MVR Footage from Plaintiffs Arrest

D12- Plaintiffs Medical Records, as obtained and served during discovery, regarding his treatment with Dr. Michael Krafchick

Dl3- Plaintiffs Medical Records, as obtained and served during discovery, regarding his treatment at RWJUH- Rahway

D14- Plaintiffs Medical Records, as obtained and served during discovery, regarding his

treatment at RWJUH2. Plaintiff objects to the introduction of Defendant’s

Exhibit (set forth number of exhibit and grounds for objection):

D1-D4, D8-Di1,: Plaintiff objects to the introduction of evidence of

alcohol consumption. intoxication and/or impairment. Such evidence is

irrelevant to the determination of claims and/or defenses. Such evidence is

haghl prejudiual nd not prohatic of an’s element In addition evidence of

4154967.1
41 54967.1
incident on March 12, 2009.

Whether Defendant’s excessive force caused Plaintiff’s injuries.

B. Defendant

1. Defendant’s statement oflegal issues in this case.

Did Trooper Tibbs utilize excessive force in violation of the Fourth Amendment

by striking Plaintiffin the face with a billy club?

If yes, then was Trooper Tibbs’ excessive use of force the proximate cause of any

ofPlaintiffs alleged injuries?

4154967.1
y 

ub was briefed in connection with Trooper Tibbs

motion for summary judgment. Notably. pages 6-7 of Judge Kugler’s opinion read as follows:

Viewing the facts in the light most favorable to the Plaintiff, a reasonable jury could conclude that Defendant used excessive force by striking Plaintiff with a billy club. While Plaintiff certainly posed a threat to Mr. Baik as he punched him in the holding cell “at least three times,” PL’s Dep. 49, there is no indication, by Plaintiffs account, that he “actively resist[ed]” the officers when they entered the holding cell to subdue him. [Citation omitted]. Further, because Plaintiff had already been placed under arrest, he presumably had been checked for any weapons or any other dangerous items before he was placed in the holding cell; therefore, there was little “possibility that [he] may [have been] armed.” Finally, it appears undisputed that three officers, including Defendant, entered the holding cell in order to subdue Plaintiff; thus, there was only one potentially dangerous person with whom the officers had to contend. If a factfinder were to accept Plaintiffs version of events, it would be possible to conclude, under those circumstances, the use of a billy club to the face with sufficient force to break a person’s orbital bone would constitute excessive force in violation of the Fourth Amendment. (Emphasis added).

Based on the above, Trooper Tibbs submits that Judge Kugler’s opinion denied summary judgment on the grounds that the jury could find for the Plaintiff if they believed his version of events, i.e. that Trooper Tibbs used a billy club. Trooper Tibbs submits that this is a holding that Trooper Tibbs would be entitled to qualified immunity if the jury believes that he only used his fists during their encounter.

Plaintiff does not agree with the Defendant’s interpretation of Judge Kugler’s ruling

on the motion for summary judgment. The standard for an excessive force claim is for the

inn’ to examine a range of factors and the totality of circumstances surrounding the

interaction between the Plaintiff and the Defendant police officer. Plaintiff intends to more

fully brief the foregoing issue in his trial brief.

4154967.1
Plaintiff anticipates the filing of a motion in lintine to exclude the testimony of Defendant’s

proposed expert, Mr. Scott, subject to the Daubert test Finally, Plaintiff wifi also seek to

exclude evidence of prior and/or subsequent convictions on the rounds that such evidence

is not relavant, not probative of any element and prejudicial to the Plaintiff.

Defendant anticipates the filing of motions in limine as follows:

(1) Motion to bar evidence of the fact that there is a pending internal affairs

investigation regarding Trooper Tibbs’ use offorce in this matter;

4154987.1
JURY TRIALS (If Applicable)

No later than seven days prior to the scheduled trial date or at such time as the court may direct:

I. Each party shall submit to the District Judge and to opposing counsel a trial brief

or memorandum with citations and authorities and arguments in support of the party’s position on all issues of law. The trial brief shall he electronically filed.

2. Each party shall submit to the District Judge and to opposing counsel written requests for charges to the jury. Supplemental requests to charge that could not have been anticipated may be submitted any time prior to the arguments to the

jury. All requests for charge shall be on a separate page or pages, plainly marked with the name and number of the case; shall contain citations of supporting authorities; shall designate the party submitting same; and shall be numbered in

sequence,

If you have the capability, the Proposed Requests for Charge should be submitted

on computer disk, Word Perfect format. All proposed requests for charges shall be electronically filed, and a paper copy must also be provided.

3. Each party shall submit to the judge and to opposing counsel proposed voir dire questions.

EACH OF THESE ITEMS IS TO BE FILED PRIOR TO THE FIRST TRIAL DATE EVEN IF THE CASE IS CONTINUED.

COUN S EL ARE ON NOTICE THAT FAILURE TO PROVIDE TIMELY (0\IPT I\N(E WITH THE REQLESI 01 PART N A\D Xl \IA\ RESULT l\ THE POSIPO\EME\f OF TRIAL \ND lEE \SSFSSMUNT OF H ROR AND OTHER COSTS ANI)/OR THE INIPOSITION OF SANCTIONS.

41 54967.1
this Joint Final Pre-Trial Order will not be permitted except where the Court determines that

manifest injustice would result if the amendment is not allowed.

_/s/Graham F. Baird /s/Christopher R. Paidino Graham F. Baird, Esquire Christopher R. Paidino, Esquire Attorney for Plaintiff, Attorney for Defendant, Robert Michael French Jason Squire-Tibbs

Entry of the foregoing Joint Final Pre-Trial Order is hereby APPROVED this

C

- — —

MJ

United States District Court

For the District of New Jersey, Camden

Vicinage

4154967.1