Opinion
Cause No. TH98-0196-C-T/H
May 5, 2001
W. Russell Sipes Laudig, George Rutherford Sipes Indianapolis, IN.
Michele S. Bryant, Bamberger Foreman Oswald Hahn Evansville, IN.
Douglas V. Jessen Evansville, IN.
Craig M. McKee, Wilkinson Goeller Modesitt Wilkinson Drummy Terre Haute, IN.
ENTRY ON MOTIONS IN LIMINE
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
This cause comes before the court on several motions in limine filed by Defendants, Good Samaritan Hospital ("the Hospital"), Hazel L. Ewing, Thomas J. Dagney, III, Charles C. Hedde and Charles E. Hendrix, Jr., and by Plaintiff, Jaye D. Butler. During a pre-trial conference held in Indianapolis on February 15, 2001, the court ruled on all outstanding motions in limine. In this Entry, the court elaborates on and clarifies its oral rulings with regard to certain areas of testimony that were subject to one or more motions in limine. To the extent that the court does not address a specific motion in limine in this Entry, the court deems its oral ruling and justifications therefore, articulated during the February 15 conference, to have been sufficient to dispose of those issues.
Specifically, the court granted Plaintiff's motions in limine numbered 1, 2, 3, 4, 5 (with the exception that Plaintiff may be questioned regarding prior testimony/admissions), 6, 7, 8, 9(d), 9(e), 9(f), 16, 17, 18, 19, 23, 24 and 25, and denied those numbered 9(b), 9(c), 15, 20, 21, and 22. Regarding Defendants' motions in limine, the court granted Defendants Hedde's and Hendrix's motion in limine numbered 1, and Defendants Ewing's and the Hospital's motion in limine numbered 1. All of these oral rulings were definitive, and no further objection is needed at trial to preserve the issue or issues for appellate review. (See discussion immediately below.)
As to Plaintiff's motion in limine 9(a), which asks for the exclusion of evidence concerning "Benefits from collateral insurance coverage[,]" the court, at trial, will rule consistently with Indiana Code § 34-44-1-2. That section provides for the admission of proof of collateral source payments other than "(A) payments of life insurance and other death benefits; (B) insurance benefits for which the plaintiff or members of the plaintiff's family have paid for directly; or (C) payments made by: (i) the state or the United States; or (ii) any agency, instrumentality, or subdivision of the state or the United States; that have been made before trial to a plaintiff as compensation for the loss or injury for which the action in brought[.]" IC § 34-44-1-2. Plaintiff's motion in limine 9(a) is too broad to allow the court to rule in limine on the admissibility of such evidence.
Applicable Standard
The district court's authority to rule on motions in limine is derived from its inherent authority to control the course of trials. See Luce v. United States, 469 U.S. 38, 41 n. 6 (1984). "[A] motion in limine should be granted only if the evidence sought to be excluded is clearly inadmissible for any purpose." Noble v. Sheahan, 116 F. Supp.2d 966, 969 (N.D.Ill. 2000).In Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999), the Seventh Circuit held that "a definitive ruling in limine preserves an issue for appellate review — without the need for later objection." Id. at 564; see also United States v. Galati, 230 F.3d 254, 259 (7th Cir. 2000). But "this is just a presumption, subject to variation by the trial judge, who may indicate that further consideration is in order." Wilson, 182 F.3d at 564. A conditional, contingent or tentative ruling in limine invites reconsideration at trial. See id. at 566. Thus, an objection at trial is necessary to preserve the issue for appellate review. See id. The Seventh Circuit expressed a preference that district judges "explain in the decision proper (or in the final pretrial conference) whether the evidentiary ruling is definitive, and whether consideration at trial is required, appropriate, or forbidden. . . ." Id. at 567. Following Wilson, this Entry will indicate whether a ruling on a motion in limine is definitive and whether consideration at trial is required, appropriate or forbidden.
Defendants' Motion In Limine Regarding The Final Judgment Entered In Cause Number TH 94-100-C T/H
Defendants Hedde, Hendrix, Ewing and the Hospital moved in limine for the exclusion of any evidence concerning the final judgment entered in cause number TH 94-100-C T/H (which will be referred to as the Vincennes University suit). In that cause of action, Plaintiff sued Vincennes University, Phillip Summers, David Ford, Jack Eads, Vernon Houchins, Ann LaRoche, Sharon Keifer, David Pruitt, Carolyn Jean Hoffman and Linda Sherman on a number of legal theories. Under Federal Rule of Civil Procedure 68, the defendants offered to allow judgment be taken against them for a total payment of $50,000. Plaintiff accepted the offer, and judgment was entered on August 24, 1995. Some of the events which gave rise to that suit are related to the events that gave rise to this current suit.
Defendants submit that such evidence is inadmissible under Federal Rules of Evidence 402, 403 and 408. Plaintiff argues that this evidence is not unduly prejudicial and is relevant to at least prove bias or prejudice of Defendants' witnesses who were named defendants in the prior suit. The court agrees that this evidence is relevant in that regard-but for that purpose only. And, while the evidence is prejudicial, it is not unduly so. Under Rule 403, relevant evidence is excluded only if the unfair prejudice substantially outweighs the probative value. See United States v. Bradley, 145 F.3d 889, 893 (7th Cir. 1998) ("Relevant evidence is inherently prejudicial; only where the unfair prejudice created by its admission substantially outweighs its probative value should the trial court, in the exercise of its discretion, exclude the evidence.") (citing, e.g., FED. R. EVID. 403). The probative value of this evidence, as revealed by the discussion below, outweighs any prejudicial effect.
The final judgment is admissible under both Rules 408 and 402. First, this evidence is not inadmissible under Rule 408. That rule excludes evidence of compromise offered to prove liability. However, it does not require that the evidence be excluded when used to prove "bias or prejudice of a witness." FED. R. EVID. 408. Plaintiff intends to use the final judgment to prove bias or prejudice of the witnesses who testify for Defendants here, but who offered judgment be taken against them as party defendants in the prior cause of action. Such is a proper use of this evidence. See, e.g., County of Hennepin v. AFG Indus., Inc., 726 F.2d 149, 152-53 (8th Cir. 1984) (holding that evidence of settlement is admissible to impeach under Rule 408) (citations omitted). Second, this evidence is relevant under Rule 402 to the extent that it goes to show bias or prejudice of a witness. Bias of a witness is certainly a relevant topic. See United States v. Frankenthal, 582 F.2d 1102, 1106 (7th Cir. 1978) ("Because of the importance of evidence of bias or interest, inquiry into the area is never collateral[.]") (citations omitted). Moreover, to the extent that any witness denies the existence or content of the final judgment, such will be admissible extrinsic evidence. See id. ("[A] witness' denial of the facts constituting bias or interest may be rebutted with extrinsic evidence.") (citations omitted).
Accordingly, Defendants' motion in limine is DENIED. However, Plaintiff will not be permitted to use this evidence for improper purposes. Specifically, no reference is to be made to the Vincennes University suit or judgment whatsoever unless witnesses who were defendants in that case against whom a judgment was entered testify in this trial. If that occurs, only then could evidence of the Vincennes University suit judgment be used in examining those witnesses to explore whether their testimony in this case is affected by bias against Plaintiff. The Vincennes University suit judgment is not to be used for any purpose other than showing bias of witnesses against whom judgments were taken in that case. For example, Plaintiff is not permitted to argue, as she suggested she would, that the defendants in the previous Vincennes University suit somehow conspired with Defendants in this suit to cause Plaintiff's alleged injuries, and by submitting to final judgment those Vincennes University defendants admitted the facts as alleged in the third amended (final) compliant filed in the previous suit thereby inferring liability to the current Defendants. And, parties should be mindful of this court's discretion as to how bias may be proved. See United States v. Higgins, 362 F.2d 462, 464 (7th Cir. 1966) ("[T]he trial court has considerable discretion as to how and when bias may be proved and as to what collateral evidence for purposes of impeachment is material.") (citations omitted). That is to say, this court does not intend to allow either party to make the facts of the Vincennes University final judgment central to the issues in this case, as they are not, and will not permit use of this impeachment evidence to develop into a mini-trial on the meaning of the final judgment. This ruling is definitive; however, should Defendants believe that Plaintiff is using this evidence in an inappropriate manner, Defendants should make their objections known at trial.
As the court stated at the pre-trial conference, it does not expect the word "conspiracy" to ever surface at trial.
Plaintiff's Motion In Limine Regarding The Pre-September 1991 Hospitalization Falsehoods
Plaintiff moved in limine for the exclusion of any evidence concerning any events that occurred prior to Plaintiff's 1991 hospitalization, with the exception of a fall that may have originated her seizure disorder. Plaintiff argues that such evidence is inadmissible impeachment evidence and is unduly prejudicial. Defendants respond that such evidence is admissible impeachment evidence and is directly relevant to several important issues in this case.
The court need not go into the details of the events which Plaintiff seeks to exclude. Those events are not disputed. It is enough to say that Plaintiff, beginning in 1987, momentously fabricated her medical history. For instance, Plaintiff led Vincennes University officials and others to falsely believe that she was a heart and kidney transplant survivor and went so far as to lecture (more than once) to a psychology class on her two operations. What is in dispute, is to what extent the jury should hear of these fabrications.
Plaintiff suggests that the only vehicle through which this evidence may be introduced is Rule 608(b). However, Plaintiff maintains that under Rule 403 the court should exclude this evidence, even to the extent it is used to impeach Plaintiff. In an effort to balance Rule 608(b) and Rule 403, Plaintiff suggests that she stipulate "that she lied about her health condition for a period of several years while employed at Vincennes University, if she is also allowed to explain that she did it due to fear of losing her job." Pl.'s Mem. in Supp. of First Mot. in Limine at 11.) Such a stipulation is wholly unacceptable to the defense. Defendants assert that Plaintiff did more than simply lie about her health condition, and that evidence of her falsifications is relevant to central issues in this case. Defendants suggest that in addition to impeachment of Plaintiff, such evidence is relevant to explain their medical treatment of Plaintiff.
Whether Plaintiff agrees that this evidence is admissible under Rule 608(b) is not entirely clear from her brief. It may be that Plaintiff agrees that this evidence is admissible under Rule 608(b), and only argues that it should be excluded under Rule 403. On the other hand, Plaintiff may be arguing that this evidence is inadmissible under Rule 608(b) and also under Rule 403. In any event, the court finds that this evidence is admissible under Rule 608(b) as proper impeachment evidence. The central issue in this case is whether Plaintiff consented to the medical treatment rendered by Defendants. Thus, credibility of the witnesses will be extremely important here. Rule 608(b) provides,
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility . . . may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
FED. R. EVID. 608(b). Under this rule, Defendants will be allowed to cross-examine Plaintiff on the subject of her elaborate falsifications concerning her medical health while employed at Vincennes University. Such evidence is extremely probative of the credibility of Plaintiff.
Next, Rule 403 is not a bar to the admissibility of this evidence. Plaintiff maintains that this evidence is too remote to be probative, will only serve to confuse the issues in this case, and is unduly prejudicial. Plaintiff's argument that this line of questioning is an improper attack on Plaintiff's credibility because these events occurred years ago is not persuasive. In this case, Plaintiff's credibility, including her credibility at the time these events occurred, is extremely relevant to Defendants' course of conduct. Because these events occurred immediately prior to Plaintiff's hospitalization which is the subject of this lawsuit, they are not too remote in time as to not be probative of Plaintiff's credibility. Also, this evidence will not confuse the jury. Quite the contrary, this evidence may be extremely useful to the jury in determining whether Plaintiff consented to the medical treatment rendered — the quintessential issue in this case. Finally, this evidence, while prejudicial, is not unduly so. As stated above, "Relevant evidence is inherently prejudicial; only where the unfair prejudice created by its admission substantially outweighs its probative value should the trial court, in the exercise of its discretion, exclude the evidence." Bradley, 145 F.3d at 893. Here, there is no question that the probative value of this evidence outweighs any prejudicial effect. Therefore, there is no question that this evidence may be used to impeach Plaintiff under Rule 608(b). It should be noted that Defendants' use of such matters would be limited to cross examination of Plaintiff or of any witnesses she calls to testify about her character for truthfulness.
Defendants also maintain that this evidence is relevant to central issues in this case, including their treatment of Plaintiff, and, therefore, extrinsic evidence of these fabrications should be allowed. Defendants' arguments concerning the relevancy of this information are persuasive. Clearly, this evidence is relevant to the extent Defendants relied upon it in ascertaining Plaintiff's medical history from which a treatment plan was formed. All information which Defendants relied upon in treating Plaintiff in this case is relevant. To put it lightly, the fabrications Plaintiff told concerning her medical history were unusual. The jury must be able to realize these fabrications to at least the extent that Defendants were made aware of them while treating Plaintiff. Such evidence could be directly relevant as to whether Plaintiff offered her consent for treatment. Therefore, evidence of Plaintiff's falsifications is admissible on this ground.
As to the extent that Defendants were not aware of some of Plaintiff's fabrications while treating her, such evidence is also admissible if used for proper purposes. For instance, evidence of Plaintiff's elaborate falsifications, even those learned by Defendants only through discovery, may be directly relevant on the issue of damages. Plaintiff alleges damages in this case that may be directly attributed to Vincennes University officials learning of her deceit as a result of her hospital stay. Thus, suffering for which Plaintiff claims that Defendants should be held accountable may not be due to Defendants' conduct, but rather to the conduct of Plaintiff in perpetuating these falsehoods. Also, such evidence may be admissible under Rule 404(b) as proof of such things as motive, intent and preparation. Plaintiff intends to call witnesses who will testify as to what they saw, including Plaintiff's conduct regarding her alleged refusal of consent, when visiting Plaintiff in the hospital. Plaintiff's conduct while hospitalized may have been motivated by a desire to conceal the deceit she had employed for some time, and not actually a withholding of consent to be treated. In other words, it is possible that Plaintiff was both seeking medical treatment for her problems and attempting to continue her deceit regarding her medical history. That would explain why Plaintiff's witnesses believed Plaintiff was being treated without her consent, while Defendants believed that Plaintiff had in fact rendered her consent. Without evidence to show how astonishingly elaborate Plaintiff's falsifications were, Defendants might not be able to put forth a complete defense on the central issue in this case — whether Plaintiff gave her consent for the medical treatment rendered.
In any event, the court notes that the facts in this case are at least bizarre. While the court does not pass judgment on which version of the facts, Plaintiff's or Defendants', are true and correct, the court recognizes that the jury may have its collective hands full in this case. Counsel for the parties have represented that Plaintiff's version of what happened at the Hospital will be diametrically opposed to Defendants' versions in many critical respects. That being so, the court is very hesitant to rule in limine that potentially relevant evidence should be excluded. Thus, Plaintiff's motion is DENIED. As to the use of this evidence as impeachment evidence and as to the admissibility of this evidence to the extent Defendants were made aware of Plaintiff's pre-hospitalization falsehoods while treating Plaintiff, this ruling is definitive. However, as to evidence of Plaintiff's pre-hospitalization falsehoods which were learned by Defendants for the first time through discovery in this case, this ruling is not definitive. If during the course of trial the reasons that Defendants submit for the admissibility of this evidence become no longer valid, then the court may reconsider this ruling upon motion made outside the presence and hearing of the jury. Also, to the extent that presentation of this evidence becomes unduly cumulative, it will not be allowed. Plaintiff should raise cumulative objections, if they would be appropriate, at trial.
Defendants' Motion In Limine Regarding Negligence
Defendants Hedde, Hendrix, Ewing and the Hospital moved in limine for an instruction excluding any evidence, including testimony, of medical negligence in the administration of medical care, except to the extent that such care was administered without Plaintiff's consent. Negligence is not an issue in this case; this case is grounded in intentional tort. That determination is not disputed. For that reason, Defendants' motion is GRANTED. Accordingly, Plaintiff is INSTRUCTED not to argue a negligence theory of liability to the jury. Furthermore, the court will not give a negligence instruction to the jury. This ruling is definitive.
For instance, Defendants Hedde and Hendrix submit that evidence concerning such things as whether the selection and/or dosage of medication was appropriate to treat Plaintiff's seizure disorder should be excluded.
Plaintiff's Motion In Limine Regarding The Summer 2000 Hospitalization
Plaintiff moved in limine for the exclusion of any reference to Plaintiff's summer 2000 hospitalization in Springfield, Missouri. Plaintiff argues that this evidence is not relevant, is prejudicial and will only serve to confuse the issues in the case. Defendants Hedde, Hendrix, Ewing and the Hospital respond that such evidence is relevant.
Plaintiff's motion refers to the hospitalization as the "spring" 2000 hospitalization. However, Plaintiff does not dispute that the dates of the hospitalization were August 7 and 8, 2000. Therefore, the court infers that by inadvertent clerical error Plaintiff referred to these events as occurring in the spring rather than in the summer, which is when they actually occurred. In any event, whether the hospitalization occurred in the spring or the summer is not an important distinction.
If evidence concerning the summer 2000 hospitalization were admitted, it would generally be as follows. Plaintiff was admitted to the St. John's Regional Health Center in Springfield, Missouri, on August 7 through August 8, 2000. During her stay, she was examined by Dr. Thomas Habiger, and submitted to various laboratory tests. However, she refused other testing including scans and imaging, EEG, and any type of monitoring. On August 8, she was discharged against medical advice.
This evidence, including Plaintiff's refusal to submit to testing aimed at discovering the true nature of her seizure disorder, is clearly relevant, especially as to Plaintiff's mitigation of her damages. Defendants intend to use Dr. Habiger's testimony to establish that Plaintiff's refusal to submit to testing to confirm the nature and extent of her seizure disorder prevents her physicians from formulating a treatment plan for her seizures. Thus, by refusing such testing, Plaintiff has failed to mitigate her damages. This evidence is therefore relevant and admissible as such. Moreover, evidence regarding her refusal of testing may be relevant in evaluating her current medical condition, including the causation of her condition, and the question of damages, especially with respect to mitigation.
Next, Defendants submit that Dr. Habiger, while treating Plaintiff, raised questions about whether Plaintiff was suffering from mental health disorders and pseudoseizures which could possibly be contributing to Plaintiff's seizure disorder. At a pretrial conference in this case, the court preliminarily indicated that the foundation for Dr. Habiger's testimony on these points appeared to be lacking and that it was unlikely that this evidence would be admitted. However, the court has now had the opportunity to review Dr. Habiger's deposition in detail and finds adequate support for the admission of much of his testimony about the August 2000 matters involving Plaintiff at St. John's Hospital in Springfield, Missouri. First, Dr. Habiger is a Board Certified neurologist. His background, training and experience by necessity provide him with a substantial basis to identify certain mental disorders, at least to the point of identifying concerns for further testing, examination and evaluation. And that is what he did with Plaintiff. In order to do so, he had adequate opportunities to interact with Plaintiff and observe her in the hospital setting. He was provided with reliable reports of her conduct which occurred out of his presence. He communicated with Plaintiff's father and with Dr. Carter, who had been treating Plaintiff for her seizure disorder. Thus, the basis for Dr. Habiger's observations about Plaintiff is well documented.
As for the relevance, although the 2000 incident occurred approximately nine years after the Good Samaritan episode, it is certainly probative on such matters as how Plaintiff is tending to her seizure problems. She seeks monetary compensation for impairment of her earning capacity. Her seizures unquestionably also have an effect on her ability to be employed. That she continues to refuse recommended medical evaluations is highly probative of the extent to which she is mitigating her damages. It is also the court's understanding that Plaintiff contends that her present physical and mental condition (and her condition in 2000) is, at least in part, attributed to things that were done to her at Good Samaritan. That being the case, Plaintiff's refusal of evaluation and treatment in 2000 is probative with respect to both whether she can show causation of harm by the Good Samaritan experience and whether she is attempting to minimize that harm. Additionally, the St. John's Hospital matters may also have relevance regarding Plaintiff's credibility pursuant to FED. R. EVID. 608(b), much as the matters preceding her Good Samaritan hospitalization do, as noted above.
Plaintiff expresses her concern about the prejudicial potential of the St. John's Hospital evidence. However, much of her concerns relate to the fact that this evidence just does not help her case. That is not what the concern about prejudice in FED. R. EVID. 403 is about. Just because this evidence does not help her win her case does not make it inadmissibly prejudicial. It would, however, be prejudicial if Defendants would attempt to use St. John's Hospital information for an improper purpose, such as prohibited by FED. R. EVID. 404(b), that is, arguing that similarities between her conduct at St. John's and Good Samaritan Hospital show that it is part of Plaintiff's character to give false information in hospital settings, to be manipulative and uncooperative there, and so on. Clearly, that would be improper and will not be allowed.
On balance though, even if there is some prejudice to Plaintiff from the St. John's Hospital evidence, the probative value of it to show the matters noted above far outweighs any prejudicial impact. Thus, it will be allowed and Plaintiff's motion in limine will be denied.
However, Defendants seek to admit evidence concerning her conduct surrounding her discharge from the St. John's Hospital. These events, as relayed by Defendants, are strongly disputed. This evidence, however, is not relevant to the issues in this case and is unduly prejudicial. For those reasons, Plaintiff and Defendants are INSTRUCTED to neither make reference to those events nor present evidence concerning such events.
To be more particular, the court will now rule on Plaintiff's objections to Defendants' Designation of Deposition Testimony of Thomas Habiger, M.D. filed on February 26, 2001:
As to Plaintiff's objections based on relevance and this motion in limine, all of them are OVERRULED for the reasons just stated except:
• Page 21, line 23 through page 22, line 14;
• Page 28, line 8-19 (the objection sustained is actually because of hearsay); and
• Page 29, line 20 through page 30, line 6.
These three objections are SUSTAINED.
As to Plaintiff's three "leading" objections, to questions on pages 12, 14 and 15, they are OVERRULED. The questions are not excessively leading. To the extent they might have some characteristics of leading the witness, the questions appear reasonably necessary to development of the witness' testimony, and help put it into context, as permitted by FED. R. EVID. 611(c). Furthermore, the questions merely summarize certain matters in Habiger's other testimony or introduce a subject for his response.
Next, as to Plaintiff's two other "hearsay objections," as to page 26, line 15 through page 27, line 19, the objections are SUSTAINED because the answers are based on hearsay.
Finally, Plaintiff made several objections based only on the lack of relevance of portions of Dr. Habiger's testimony. These are addressed as follows:
• Page 28, line 20 through page 29, line 9 (these objections are OVERRULED. The fact that Plaintiff complained of abuse in connection with refusing recommended testing is part and parcel of her refusal. That she might have considered the test itself to be abuse is relevant to her efforts to mitigate her damages and her ability to show causation of her present condition.)
• Page 32, line 22 through page 34, line 23. (This objection is OVERRULED. Whether Plaintiff consented to the process Dr. Habiger explained to her is relevant with respect to whether she refused further evaluation of her condition.)
• Page 51, line 21 through page 58, line 15. (These objections are SUSTAINED. These questions do not relate to the observation or evaluation of Plaintiff by the witness and are not properly framed as though to an expert on hospital treatment. Though not objected to, the question at page 53, lines 23-25 and the response at the top of page 54, line 1, is of the same type and is inadmissible. Dr. Habiger is not presented as an expert on these subjects. Only his observations about Plaintiff are relevant. Toward the end of this line of questioning, on pages 55 through 58, there is some questioning regarding specific observations of Ms. Butler, but the questions are so incomplete of relevant facts and argumentative that they are confusing, making the answers incomprehensible, misleading and irrelevant. (The court notes that it overruled the motion in limine objection to lines 1-15 on page 58, but it does sustain the relevance objection to those lines for the reasons just indicated.)
So with these particulars, for the foregoing reasons, this motion is DENIED in part and GRANTED in part. Additionally, these rulings are definitive. Similar issues regarding the 2000 St. John's Hospital matter will be treated in a similar manner.
Defendants Motion In Limine Regarding W. Timothy Crowley Defendants Hedde and Hendrix, Jr. moved in limine for an instruction prohibiting any reference in front of the jury by any party or witness to the fact that W. Timothy Crowley, a witness for Plaintiff, is currently a state court judge. Mr. Crowley is identified as a witness on Plaintiff's Trial Witness List and currently serves as a judge in the Knox County Superior Court. Hedde and Hendrix are concerned that a jury may give more weight to Mr. Crowley's testimony because he is a judge. Hedde and Hendrix also assert that Mr. Crowley's occupation as a judge is not relevant here because the matters to which he will testify concern his association with Plaintiff when he was an attorney in private practice.
"[C]alling a judge to give testimony in any proceeding is a very delicate matter." Frankenthal, 582 F.2d at 1107. The fact that a judge's appearance as a witness for a party may somehow impart "prestige, dignity, and authority" to that party's case "cannot lightly be dismissed." Id. at 1108. Therefore, this court will take care to give this matter the delicate attention that it deserves and to adequately "minimize any risk of unfair prejudice." Id.
From Hedde's and Hendrix's motion, the court infers that Mr. Crowley will be a fact witness for Plaintiff. In their motion, Hedde and Hendrix assert that Mr. Crowley's testimony will concern his association with Plaintiff when he was employed as an attorney in private practice in Vincennes, Indiana, in 1991 and 1992. From this assertion, the court does not believe that Mr. Crowley will be testifying to Plaintiff's character or reputation.
Additionally, at the February 15 pre-trial conference, Plaintiff represented that Mr. Crowley would be testifying as a fact witness.
This inference is significant to this court's ruling in this matter. If Mr. Crowley is called to testify as to Plaintiff's character and/or reputation, the court will be open to reconsideration of this issue.
Courts in the past have convincingly and adequately dealt with this issue. In People v. Jordan, 562 N.E.2d 1218, 1221 (Ill.App.Ct. 1990), the Illinois appellate court affirmed the trial's court decision to deny the defendant's motion in limine seeking to prevent the jury from being informed that a former prosecutor, to whom the defendant had confessed, was, at the time he testified at trial, a circuit court judge. The court reasoned:
In the present case, we cannot say that the trial court manifestly abused its discretion in denying defendant's motion in limine. Certainly, the jury was entitled to know that [the former prosecutor] was now employed as an associate judge in Du Page County. The reason for this is that the witness' occupation and related background is of value to the jury in determining the credibility of the witness and his testimony.
Id. (citation omitted). Similarly, in Ginsberg v. McIntire, 704 A.2d 1246, 1259 (Md. 1998), the court held that the jury was entitled to hear that a fact witness for the plaintiff, her former attorney, was, at the time he testified, a state circuit court judge. The court reasoned, "It is simply a part of the customary, preliminary background examination of any fact witness." Id. Quoting Baltimore v. Zell, 367 A.2d 14, 17 (Md. 1977), the court opined:
It is a routine practice in trials for an attorney to ask his witness certain preliminary questions which may not be relevant to the issues being litigated, which may go beyond mere identification and which are designed to show that the witness will be somewhat credible or not biased in favor of the side calling him. For example, the educational background or professional status or employment position of a non-expert witness may be asked, or the witness's lack of prior contact with the side who has called him may be brought out. These questions give the jury some knowledge of the individual and a more complete perspective in considering his testimony.
Id.
The reasoning of those cases is sound. In this case, Ms. Butler should be allowed to develop the credibility of her witness through testimony related to his background. However, once Mr. Crowley's background is sufficiently established it will no longer be necessary for the parties or witnesses to refer to Mr. Crowley as "judge" or "his honor." This lack of necessity and purpose, coupled with the fact that repeatedly referring to Mr. Crowley by his formal title may somehow impart prestige, dignity or authority to Plaintiff's case, lead the court to believe that some instruction in this regard is necessary.
Therefore, while Defendants' motion is DENIED, all parties and witness are INSTRUCTED to refer to W. Timothy Crowley as Mr. Crowley and not as Judge Crowley, or any similar formal title. Moreover, by this ruling the court is not foreclosing the possibility that a limiting instruction be given in regards to this issue should either party request such an instruction and it is appropriate under the circumstances that such instruction be given. This ruling is definitive.
The language of such an instruction would likely be as follows:
You have heard testimony from a witness who is currently working as a judge of an Indiana state court. You should not give the testimony of a person who works as a judge any special weight, or in other words, you should not believe a witness's testimony merely because he or she works as a judge. A judge who takes the witness stand subjects his or her testimony to the same examination and the same tests that any other witness does. You should weigh and balance the testimony of a person who works as a judge just as carefully as you would for any other witness.
Conclusion
The parties, counsel, and their witnesses may not refer in the presence of the jurors or prospective jurors to the matters covered by these motions in limine which have been granted; such evidence is inadmissible. Counsel are DIRECTED to so inform the parties and their witnesses.
Regardless of whether a ruling on a motion in limine is definitive or not, counsel may seek reconsideration as appropriate throughout the course of trial. The indication that a ruling is definitive simply relieves counsel of the obligation to object contemporaneously with the introduction of the evidence which was the subject of a motion in limine. Counsel are ADVISED that all requests for reconsideration of a ruling on a motion in limine must be made outside the presence and hearing of the jury.
ALL OF WHICH IS ORDERED.