Michele v. Tierney, 553 F. App'x 100

Plaintiff-appellant Frank De Michele appeals a district court judgment entered January 2, 2013, following a jury verdict for defendants Tierney, Ruiz, and Gutierrez in a § 1983 excessive force case.
De Michele sought reversal on three grounds: (1) district court failed to give an alternative liability jury instruction; (2) admission of expert testimony was improper; (3) district court precluded evidence of a purported cover-up.
The district court dismissed De Michele’s claims after the jury verdict, effectively affirming the defendants’ asserted defenses.
De Michele’s proposed alternative liability instruction would have required the defendants to prove none of them caused the harm when multiple actors could have done so, drawing from the Restatement and related authority.
The district court declined the instruction due to lack of a factual predicate—De Michele’s own expert testified the harm could have been caused by more than one actor, i.e., it was not caused by a single defendant alone.
The court also allowed Dr. Marc Appel’s testimony on alternative causes based on De Michele’s medical records and excluded evidence of a helicopter crew’s alleged cover-up as irrelevant to the claims against the defendants.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Alternative liability instruction required?	De Michele argues for an alternative liability instruction based on multiple culpable actors.	Defendants contended no factual predicate supported the instruction.	Instruction lack of factual support; affirmed.
Admission of expert testimony on alternative causes?	De Michele relies on expert testimony to support causation theories.	Defendants contend district court did not abuse its discretion; testimony was relevant and qualified.	No abuse of discretion; testimony properly admitted.
Preclusion of alleged cover-up evidence?	De Michele sought to present a cover-up theory linking helicopter crew actions to the defendants.	Evidence was irrelevant to the defendants and not probative of the claims at issue.	No abuse of discretion; evidence properly precluded.

Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994) (entitlement to jury instructions supported by probative evidence)
McCardle v. Haddad, 131 F.3d 43 (2d Cir. 1997) (no instruction where no factual predicate)
Summers v. Tice, 199 P.2d 1 (Cal. 1948) (alternative liability when multiple defendants breach a duty)
In re Agent Orange Prod. Liab. Litig., 597 F. Supp. 740 (E.D.N.Y. 1984) (supports alternative liability principle; causation burden on individual actors)
In re Agent Orange Prod. Liab. Litig. MDL No. 381, 818 F.2d 145 (2d Cir. 1987) (affirming related causation framework)
MTBE Prod. Liab. Litig., 447 F. Supp. 2d 289 (S.D.N.Y. 2006) (cited for alternative liability context)
Cameron v. City of New York, 598 F.3d 50 (2d Cir. 2010) (standard of review for evidentiary rulings)