Opinion
IP 01-0343-C-T/K
April 29, 2003
B. Keith and J. Schneider, Schneider Schneider Pc, Arlington, Height, IL.
Julie J. Carrell, Assistant Corporation Counsel, Indianapolis, IN.
Jeff Gibson, Assistant Corporation Counsel, Indianapolis, IN.
John C. Ruckelshaus, Ruckelshaus Roland Kautzman Hasbrook, Indianapolis, IN.
ENTRY ON MOTIONS IN LIMINE AND BIFURCATION
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This entry addresses the court's rulings on the Plaintiff's Motion in Limine and the Defendants' Motion in Limine as well as the issue of bifurcation. In respect to some subjects of the motions in limine, this entry memorializes the rulings already made during the trial preparation conference held on March 26, 2003. In respect to those matters taken under advisement at the conference, this entry is the court's ruling on such matters.
A. Bifurcation for Trial
After reading the parties' submissions and hearing their arguments about the relevance and admissibility of Plaintiff's emotional/psychological/psychiatric condition, the court raised the subject of bifurcation on its own, with no encouragement from any party. It is obvious from the parties' arguments that the discussion of this condition has consumed a great deal of time in the pretrial and trial preparation process. It seemed to the court that the subject of the Plaintiff's condition was being magnified as a potential issue to the point that it was interfering with the initial appropriate focus of the trial, that is, whether the Plaintiff can prove that the Defendants used excessive force in arresting her on the night in question, March 14, 1999. The court raised the potential of bifurcating the issue of liability from a determination of damages as means of clarifying and simplifying the issues for trial. From the discussions during the trial preparation conference and the Defendants' subsequent written objections, it is evident that the Plaintiff favors bifurcation and the Defendants oppose it.
The Plaintiff's condition has not been clearly diagnosed or categorized, at least so far as the court can discern from the information provided to it. Rather than inaccurately label her condition, the court will use this broad, generic description.
Federal Rule of Civil Procedure 42(b) authorizes a district court to bifurcate claims and issues for trial. Bifurcation between liability and damages is not uncommon. Bifurcation is allowed when it is "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy[.]" Fed.R.Civ.P. 42(b). Only one of these criteria need be satisfied in order for bifurcation. Berry v. Deloney, 28 F.3d 604, 610 (7th Cir. 1994). The court has a wide range of discretion in evaluating whether to bifurcate issues and claims for trial, as long as the right of trial by jury is preserved. What the court is considering in this case is presenting the question of whether the Defendants used excessive force in arresting the Plaintiff to a jury, and, if that jury answers that question in the affirmative, empaneling a second jury to consider the questions of whether compensatory and punitive damages should be awarded to the Plaintiff, and, if so, the amounts.
Based on the Plaintiff's arguments regarding her pre-existing emotional/psychological/psychiatric condition in connection with her motion in limine, the court understands the Plaintiff to be concerned that the jury might improperly use evidence of her pre-existing condition as an unfair basis for deciding against her on her claims and that the Defendants would improperly argue that her condition affects her credibility. The Defendants respond that bifurcation would unduly prejudice them in the presentation of their defense, the gist of which is that the Plaintiff's version of the events of March 14, 1999 is not credible, more particularly, that excessive force was not used in effectuating the Plaintiff's arrest. As noted in the entry denying summary judgment on the excessive force claim, the Plaintiff and the Defendants are expected to give drastically different testimony about those events. The Defendants assert that the Plaintiff's medical records, both mental and physical, are critical to their defense against liability because (1) the records bear on the Plaintiff's ability to perceive and recall the events alleged in her Complaint; (2) the Plaintiff's mental and physical state, as known by the Defendants at the time of her arrest, is relevant to establishing a basis for force, if any, used against her to effect her arrest; and (3) they have a right to introduce evidence of the Plaintiff's mental and physical state following arrest.
However, it is noted that during the trial preparation conference, defense counsel indicated that the Defendants' position was that no amount of force was used against the Plaintiff.
The Defendants claim that the Plaintiff's mental and physical ailments affected her ability to recall details both at her depositions and during the night in question. They cite to page 95 of her deposition of February 7, 2002, and pages 16-17 of her deposition of February 19, 2003. At the February 7 deposition, the Plaintiff did not testify that any emotional/psychological/psychiatric condition affected her ability to perceive and recall events. Rather, she testified that she was in "such a great amount of pain [referring to her kidney infection] and through the stress of what the police officers put me through and the statements from John [Patterson] from that day [referring to him allegedly admitting he intentionally gave her herpes] that it may have." (Pl.'s Dep. 2/7/02 at 95.) This testimony may suggest that the Plaintiff's ability to recall the events was impaired by her physical pain, the acts of the Defendants at the time of the arrest, and John Patterson's alleged admission; the testimony, however, does not pertain to any emotional/psychological/psychiatric condition of the Plaintiff.
But even with bifurcation, the court will not preclude defense counsel from asking the Plaintiff about these specific things in the liability phase of the trial her kidney infection and resulting pain, the acts of the Defendants, and Mr. Patterson's statements — which she testified may have affected her ability to perceive and/or recall the events of March 14, 1999. But the Defendants are off base in urging that the Plaintiff's emotional/psychological/psychiatric records are relevant to the question of liability. The Defendants have offered no part of her records which would tend to suggest that she suffered a condition that affected her ability to perceive or recall events. They have not shown that the Plaintiff was determined to have been suffering from hallucinations or illusions. If they had such evidence, the court presumes they would have brought it to the court's attention. The court concludes that the Defendants have not shown that the Plaintiff's emotional/psychological/psychiatric records, or her medical records, for that matter, have any bearing on her ability to perceive and recall the events upon which her Complaint is based. Thus, while the Plaintiff's records and pre-existing condition have great relevance to whether she has suffered damages, and if so, the extent, they have no relevance to whether her testimony about the events of March 14, 1999 is credible.
At the Plaintiff's February 19, 2003, deposition, it is represented that the Plaintiff testified that she was not feeling well, was very ill, and could not think. There is no representation that the Plaintiff "could not think" because of an emotional/psychological/psychiatric condition. Counsel will be allowed to question the Plaintiff about her ability at the time of her giving testimony at trial to recall the events in question. If the Plaintiff relies at trial on her own testimony from the February 19 deposition, then inquiry into the Plaintiff's stated inability to think on that day would seem fair ground for impeachment. However, these inquiries, well-founded on the Plaintiff's own deposition testimony, do not open the door to a sweeping exposition of her emotional/psychological/psychiatric condition.
The Defendants maintain that the Plaintiff's mental and physical state as known to them at the time of her arrest is relevant as knowledge, facts and circumstances known to them at the time. Evidence of what the Plaintiff said and did just prior to her arrest and during the arrest in the presence of the Defendants (and, perhaps, what Mr. Patterson may have told them about her behavior) is relevant as circumstances presented to the Defendants. See Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 592 (7th Cir. 1997) (the question whether force used was unreasonable is determined based on the totality of the circumstances known to the officers), cert. denied, 522 U.S. 1116 (1998). However, presenting what the Plaintiff did and said at the time of her arrest is different from exploring the depths of her emotional/psychological/psychiatric condition. There is no indication in the record that the Defendants were aware of her emotional/psychological/psychiatric condition at the time of her arrest or what the medical records reported about that, so such condition could not have affected their judgment as to the amount of force to use in effecting her arrest. While the Defendants are correct that the Plaintiff's conduct is relevant to the issue of liability, they have not shown that her emotional/psychological/psychiatric or physical condition — apart from what she or someone else conveyed to them through words or actions at the time of the arrest — is relevant to a determination of whether any force used was excessive.
The Defendants argue that evidence of the Plaintiff's physical and mental state after her arrest is relevant. Evidence of the physical injury, if any, and the extent thereof, suffered by the Plaintiff as a result of the alleged use of excessive force is a relevant consideration for the jury in determining liability. See Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 470 n. 3 (7th Cir. 1997); Meyer v. Robinson, 992 F.2d 734, 739 (7th Cir. 1993) ("no injury gives weight to the assertion of no excessive force"); cf. Saucier v. Katz, 533 U.S. 194, 209 (2001) (finding of no excessive force is confirmed by the fact that the respondent did not suffer hurt or injury). None of these cases, any others cited by the Defendants, or any decision of which this court is aware holds that a plaintiff's mental state after arrest is an appropriate consideration for the assessment of whether the force used in an encounter between the police and a citizen was excessive. That no such case exists is not surprising because the case law is clear that, as the Defendants themselves recognize, it is the facts and circumstances known to the arresting officers at the time of the arrest which matter. See, e.g, Deering v. Rich, 183 F.3d 645, 650 (7th Cir. 1999).
Therefore, with respect to the issue of liability the Defendants will be able to offer evidence of the absence or extent of any physical injury suffered by the Plaintiff during the incident in question through testimony and, potentially, the Plaintiff's medical records (but see the court's ruling on the motion in limine, infra at 12-15, 18). However, her pre-existing mental and emotional condition is not relevant to the issue of liability.
Underlying the concern of potential prejudice arising from the introduction of evidence about the Plaintiff's pre-existing and/or subsequent emotional/psychological/psychiatric condition is the potential that a member of the jury might infer that a person suffering from a mental illness or emotional disturbance should not be believed. The ill-deserved but perceived taint of mental illness is not uncommon; surely, defense counsel would not intend to argue that the Plaintiff's condition is a reason that liability should not be found for the use of excessive force, but it is difficult to discover whether individual members of the jury may have such bias. Even the asking of questions about this subject in voir dire may result in a misstatement of the Plaintiff's condition, or plant the seed of doubt about a person who suffers from such conditions. All of this becomes quite a distraction from the clear and simple matter that the Plaintiff must prove to prevail, that is, that the Defendants used force against her on March 14, 1999, which was excessive under the circumstances presented to them. Elimination of this potentially prejudicial effect of the Plaintiff's emotional/psychological/psychiatric condition clears the courtroom of this distraction and allows the jury to focus on the critical evidence of the events of the night in question. These considerations weigh heavily in favor of bifurcation.
The Defendants also argue that bifurcation will cause undue delay. Though there have been delays in this case attributable to action or inaction by the Plaintiff, that this case has been pending for slightly over two years is not exceptional. Also, the court indicated at the trial preparation conference that if the damages phase of the trial were necessary following the jury's verdict on liability, the trial of damages would follow relatively shortly thereafter in a matter of weeks or few months, depending on counsels' schedules and the court's but not many months or even years. So, any delay from the bifurcation would be minimal. And, to suggest that bifurcation is yet another delay tactic by the Plaintiff is incorrect; bifurcation was the court's own idea.
The Defendants argue that bifurcation will cause undue expense for them as they will be required to miss two days of work to attend the trial on liability and an additional two days to attend the trial on damages. The court doubts that the process would take as long as the Defendants project. Moreover, while there is a risk of some duplication from the first trial to the next, bifurcation may ultimately save the Defendants from expense and time in trial. If the jury in the first trial finds in the Defendants' favor, then there would be no trial on damages, and no time whatsoever would be used in presenting evidence, argument and instructions on issues regarding damages. In the end, this would promote economy.
The court recognizes that the Defendants' work involves a necessary public safety function and there will be some costs associated with their attendance at trial. But this cost must be balanced with other considerations such as a fair trial and a jury determination based only on proper matters. Besides, the Defendants have not shown that bifurcation will unfairly prejudice their presentation of a defense.
Bifurcation between liability and damages in this case eliminates any potential prejudice to the Plaintiff in the liability phase of this proceeding caused by reference to and evidence of any of her pre-existing emotional/psychological/psychiatric conditions. The court is of the opinion that the risk of prejudice perceived by the Plaintiff exists and is sufficiently serious that bifurcation between liability and damages furthers the just determination of this action.
Accordingly, the Defendants' objections to bifurcation are OVERRULED and it is ORDERED that the trial of this cause is bifurcated between liability and damages. The court will instruct the jurors in the first phase of the trial that they will be required to decide the question of liability only. Counsel shall make no mention of damages in their opening statements, examination of any witnesses or closing arguments in the trial of the liability phase of this case. Witnesses shall make no mention of damages in their testimony, and counsel presenting the witnesses for testimony are required to instruct them accordingly prior to their testimony.
B. Plaintiff's Motion in Limine
The Plaintiff seeks an order in limine barring reference to any of the following matters: (1) any impeachment or use of the interrogatory answer regarding her previous criminal conviction which was overturned by the Indiana court of appeals; (2) any psychiatric medical record, or any psychiatric condition of the Plaintiff; (3) any argument that the Plaintiff had a pre-existing psychiatric condition which should be considered in relation to her veracity of testimony, or that said psychiatric condition would create an unreasonable magnification of injuries; (4) any argument that the Plaintiff's pre-existing psychiatric condition was the cause of the use of unreasonable force; (5) any mention that Defendant Rennaker volunteered her services to Marion County Sheriff's Department at the time of the Plaintiff's arrest; (6) any argument that since there were no permanent physical injuries inflicted on the Plaintiff that there is some correlation between the severity of injuries and the constitutional liability for the use of unreasonable force in the arrest; (7) any argument relating to the potential impact on the Defendant County of a large compensatory or punitive damage verdict, or any reference to how a verdict would be paid, or by whom; (8) any argument relating to the potential negative ramifications of an adverse verdict on the careers of Defendants Rennaker or Zielinski; (9) any reference to no previous incidents of excessive force allegations against either Defendant in their employment with Defendant or previous employers; and (10) any use of any inflammatory language regarding the word frivolous or referring to this lawsuit or any lawsuit against the government as anti-American.
(1)
The Plaintiff's motion in limine is SUSTAINED as to any impeachment or use of the Plaintiff's interrogatory answer regarding her overturned conviction. This ruling applies to both the liability and damages phases of the trial. Though the Plaintiff's interrogatory answer is literally untrue since she was convicted of contributing to the delinquency of a minor, the danger of unfair prejudice substantially outweighs any probative value as to her honesty and truthfulness, particularly given the Plaintiff's professed misunderstanding of the meaning of the interrogatory and the plausible explanation that a lay person would not understand the question as requiring an affirmative answer when the conviction had been reversed. Thus, evidence of her interrogatory answer regarding her conviction is inadmissible under Rule 403. In addition, testimony regarding the interrogatory answer as a specific instance of conduct of the Plaintiff under Rule 608(b) would put before the jury the fact of the Plaintiff's conviction which evidence is otherwise inadmissible under Rule 609(a). See, e.g., Sango v. City of New York, No. 83 CV 5177, 1989 WL 86995, at *19-20 (E.D.N.Y. July 25, 1989).
(2)
With respect to the liability phase of the trial, the motion in limine is SUSTAINED as to any psychiatric medical record, and portions of medical records which refer to the Plaintiff's emotional/psychological/psychiatric condition, as the court has concluded that the trial of liability and damages should be separate in this case. Any evidence of the Plaintiff's emotional/psychological/psychiatric condition is irrelevant to the issue of liability and thus inadmissible under Rule 402. The defense may examine witnesses about the Plaintiff's physical condition, and this may include the use of appropriate portions of medical records which refer to the Plaintiff's physical condition. Though the court has been provided with at least some of the Plaintiff's medical records (see Notice of Filing Pl.'s Pretrial Documents, Ex. 3 (medical records of Andrew Dick, M.D.)), it is unclear whether the court has been provided copies of all of her medical records that the parties have referred to in their pretrial filings. It is impossible to know what unseen records may contain. It may be that something in the medical records regarding physical examinations of the Plaintiff will have a bearing on testimony she gives about force used against her by the Defendants. For example, if the Plaintiff testifies at trial that the Defendants inflicted blows on her that would have been likely to cause contusions or other physical injuries, and she received medical treatment shortly after the incident without complaining of resulting injuries, the absence of a report of such injuries could be relevant. Similarly, the converse could also be relevant.
The Plaintiff's submission of her purported medical records with Dr. Andrew Dick, her primary care physician (see Pl.'s Dep. 2/7/02, Def.'s Ex. 5), suggests that she received medical treatment within two days after the incident at issue, and again eight days later, but did not report any physical injuries such as contusions allegedly caused by the Defendants. A treatment note from March 11, 1999, indicates that the Plaintiff's chief complaints were her kidney, nausea, dry heaves, back pain and some flank pain. Dr. Dick diagnosed her with a urinary tract infection ("UTI") and prescribed medication including an antibiotic. The treatment note for March 16, just two days after the Plaintiff's arrest, states that the chief complaint is a re-check of a UTI and the Plaintiff was still having back/flank pain. The diagnosis was UTI and the Plaintiff was continued on an antibiotic. The March 24 treatment note states that the Plaintiff's chief complaint was a re-check on a UTI. At the time, the Plaintiff reported no pain. These records may support a finding that the Plaintiff was seen and treated by Dr. Dick just before and shortly after the events giving rise to her claims against the Defendants. Though the Plaintiff complained of back/flank pain on March 16, nothing in the treatment notes suggest that the pain was any different from that about which she complained on March 11, before her arrest, or that the pain was caused by the use of excessive force. And, although the note indicates that the Plaintiff was examined, there is nothing in the note to suggest that she had any bruising which might be attributed to such force. During the liability phase of the trial counsel may be able to question the Plaintiff and Dr. Dick about and offer documentary evidence of the physical complaints and findings reflected in the Plaintiff's medical records, as they may be relevant to the amount of physical force, if any, allegedly used against her by the Defendants.
The treatment note also contains another diagnosis which may refer to the same ailment as the urinary tract infection as the two diagnoses are written on the same line. However, the writing is not completely legible.
While evidence of physical symptoms resulting from the alleged use of excessive force or lack thereof as reflected in the Plaintiff's medical records might be relevant in the liability phase of the trial, it does not follow that all of the Plaintiff's medical records would become relevant. Counsel will not be allowed to elicit testimony or offer other evidence of complaints, treatment or other information relating to the Plaintiff's emotional/psychological/psychiatric condition. For example, no mention or reference to the Plaintiff's stated need on March 24 for Prozac or the diagnosis of depression on December 10, 1998, may be made. In order to avoid the introduction of evidence of the prohibited matters, defense counsel would do well to ask leading questions of witnesses when seeking testimony on these matters. Moreover, as developments at trial may further refine the admissibility of evidence regarding the absence or extent of any physical injury suffered by the Plaintiff through her medical records, counsel should address the matter to the court outside the presence of the jury so that any additional ground rules for the use of the medical records can be established. Even if the Plaintiff's medical records become relevant, the use of them will be done in a delicate way, and it will not open the door for the defense to parade matters before the jury suggestive of the Plaintiff's pre-existing mental and emotional disturbances.
However, with respect to the damages phase of the trial, the ruling on the motion in limine as to these matters most likely will be modified. Substantially different considerations are in play with respect to the damages that the Plaintiff claims. It seems that the Plaintiff's psychiatric records and condition may have some bearing on her damages as she has put her emotional/psychological/psychiatric condition in issue by claiming emotional and psychological injury and seeking damages therefor, see, e.g., Revised Complaint and Plaintiff's Answer to Defendants' Interrogatory No. 12. See generally O'Shea v. Jewel Tea Co., 233 F.2d 530, 532 (7th Cir. 1956) (holding court erred in striking testimony regarding plaintiff's treatment for prior foot injury where plaintiff claimed injury to same foot in present case; stating that such evidence might tend to show that the plaintiff's present condition was partially or wholly due to the prior injury); see also Burrell v. Crown Cent. Petroleum, Inc., 177 F.R.D. 376, 380-81 (E.D.Tex. 1997) (noting that where a plaintiff claims mental anguish damages, any past psychological experiences and/or emotional harm are relevant); cf. Merriweather v. Family Dollar Stores of Ind., Inc., 103 F.3d 576, 581 (7th Cir. 1996) (concluding that compensatory damages award had to be remitted where the record clearly showed that the defendant's retaliation was just one of several factors affecting the plaintiff's emotional state).
Yet, as explained above, evidence of any physical injury suffered by the Plaintiff, the extent, and/or lack thereof, is relevant to the issue of liability. This ruling does not preclude reference to or evidence of these matters in the liability phase of the trial.
(3)
The court SUSTAINS the motion in limine as to any argument that the Plaintiff had a pre-existing psychiatric condition which should be considered in relation to her veracity. This ruling applies to both the liability and damages phases of the trial. The Defendants have not made the court aware of any expert evidence which would establish that any pre-existing psychiatric condition of the Plaintiff would affect her veracity. (See supra at 4-5.) Thus, such an argument would be impermissible.
However, this ruling does not preclude reference to or evidence that when asked at her deposition whether her mental ability was affected by her illness, specifically her alleged kidney infection, the Plaintiff testified she could not "say with certainly [sic] that it would not." (Pl.'s Dep. 2/7/02 at 95.) This testimony does not refer to any pre-existing psychiatric condition of the Plaintiff. It does, however, raise the issue of whether the Plaintiff's mental ability at the time of the incident in question affected her ability to accurately recall events. (See supra at 4-5.)
With respect to the liability phase of the trial, the motion in limine is SUSTAINED as to any argument that the Plaintiff's pre-existing emotional/psychological/psychiatric condition unreasonably magnified her injuries. Bifurcation of liability and damages renders evidence of the Plaintiff's emotional/psychological/psychiatric injuries irrelevant and thus inadmissible under Rule 402 during the liability phase. The motion likely will be overruled for the damages phase, subject to reconsideration following completion of the liability phase of the trial as the issue of whether the Plaintiff's injuries or perceived injuries were reasonable and/or caused by any constitutional violation would be a proper subject for evidence and argument.
(4)
The court SUSTAINS the motion seeking to bar any argument that the Plaintiff's pre-existing emotional/psychological/psychiatric condition caused the use of unreasonable force. This ruling applies for both the liability and damages phases of the trial. The Plaintiff's pre-existing emotional/psychological/psychiatric condition has no bearing on the issue of whether the Defendants used excessive force against her. Evidence of her psychiatric condition, therefore, is irrelevant and inadmissible under Rule 402. However, evidence of what the Plaintiff said and did in the presence of the Defendants just prior to and during her arrest (and, as stated, perhaps what Mr. Patterson may have told the Defendants about the Plaintiff's behavior) is relevant and admissible to show the circumstances presented to the Defendants at the time. (See supra at 6.)
(5)
The motion in limine is SUSTAINED regarding the fact that Defendant Rennaker volunteered her services to the Marion County Sheriff's Department. This matter is irrelevant to the issues of this case and, thus, inadmissible under Rule 402. This ruling applies in both phases of the trial.
(6)
The court OVERRULES the motion in limine as to any argument that since there were no permanent physical injuries inflicted on the Plaintiff, there is some correlation between the severity of injuries and the constitutional liability for the use of unreasonable force in the arrest. Even though permanent physical injuries are not required for a finding of liability under § 1983 on an excessive force claim, there can be a correlation between the severity of physical injuries and the use of excessive force. See Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 470 n. 3 (7th Cir. 1997). Moreover, the extent of the injury suffered is one factor for consideration when determining whether excessive force was used. (See supra at 6-7.) Permanency of injury, like severity of injury, pertains to the extent of the injury. Therefore, the fact that the Plaintiff suffered no permanent physical injury is a proper consideration in determining whether excessive force was used.
As phrased, this particular portion of the motion in limine seems applicable only to the liability phase of trial. However, nothing in this particular ruling should be understood as precluding argument or evidence of the lack of permanent physical injuries to the Plaintiff in the damages phase of the trial. Such matters are relevant to the extent of injury suffered by the Plaintiff.
(7)
The motion is SUSTAINED with respect to any argument relating to the potential impact on the Defendant County of a large compensatory or punitive damage verdict, or any reference to how a verdict would be paid or by whom. In the trial of liability, these matters are irrelevant and, therefore, inadmissible under Rule 402.
As for the damages phase of the trial, this part of the motion in limine likely will be sustained as to the potential impact on the County of a large compensatory or punitive damage award, or any reference to how a compensatory damages award would be paid or by whom, as such matters are irrelevant to the issue of damages to be decided by the jury and, thus, inadmissible under Rule 402. See Lawson v. Trowbridge, 153 F.3d 368, 379 (7th Cir. 1998) (evidence and argument about a party's financial situation, indemnification, ability to pay, and insurance generally inadmissible); Munley v. Carlson, 125 F. Supp.2d 1117, 1119 (N.D.Ill. 2000) (excessive force case holding that evidence of existence of liability insurance inadmissible); cf. Joseph v. Brierton, 739 F.2d 1244, 1247-48 (7th Cir. 1984) (defense counsel argued that a large judgment would ruin his clients, though he knew they were fully indemnified by the state and had obtained an order in limine preventing plaintiff's counsel from mentioning indemnification; court said the ability to pay is irrelevant).
However, evidence of Rennaker's and Zielinski's financial resources would be admissible if the Plaintiff seeks punitive damages in the damages phase of the trial. So, if she continues to pursue punitive damages, then the motion in limine would be overruled with respect to the financial resources of Rennaker and Zielinski.
(8)
The court SUSTAINS the motion in limine as to any argument relating to the potential negative ramifications of an adverse verdict on the careers of Rennaker or Zielinski. This matter is irrelevant to the issues of whether excessive force was used and the Plaintiff's damages and is thus inadmissible under Rule 402. Even if relevant, the probative value of such evidence is substantially outweighed by the danger of unfair prejudice to the Plaintiff, so the evidence would be inadmissible under Rule 403. This ruling applies in the liability and damages phases of the trial.
(9)
The motion is SUSTAINED as to the lack of previous incidents of excessive force allegations against either Defendant in their employment with Defendant or previous employers. Such evidence would be Rule 404 evidence and is inadmissible. Such evidence also is irrelevant to the matters at issue in this case and thus inadmissible under Rule 402. This ruling applies in both the liability and damages phases of the trial.
(10)
The motion in limine is OVERRULED as to the use of any inflammatory language regarding the word frivolous, but SUSTAINED as to any reference that this lawsuit or any lawsuit against the government is anti-American. This ruling will control throughout both phases of the trial. That the claims against Rennaker and Zielinski survived summary judgment does not preclude a characterization of them as frivolousness. If the jury disbelieves the Plaintiff's testimony, it could find her claim to be frivolous, that is, groundless, or lacking a legal basis or legal merit. See Black's Law Dictionary 668 (6th ed. 1990).
C. Defendant's
Motion in Limine The Defendants' motion in limine seeks to exclude reference to the following: (1) that the charge against the Plaintiff resulting from her arrest in this case were ultimately dismissed; (2) any discipline against either of the Defendants, unless the Plaintiff can first show that such discipline arose from circumstances substantially similar to the incident involved in this lawsuit; and (3) any media reports regarding the Marion County Sheriff's Department or any of its deputies. The Plaintiff has agreed to an order in limine covering this matters. In addition, the court finds that such matters are irrelevant to any issues to be tried in this case and therefore inadmissible under Federal Rule of Evidence 402. The jurors will be instructed that the disposition of the charge against the Plaintiff is not a matter for their consideration. Accordingly, the Defendants' motion in limine is SUSTAINED.
These rulings will apply in both the liability and damages phases of the trial.
D. Conclusion
The court BIFURCATES the trial of this case between liability and damages. After the jury reaches a verdict as to liability, if necessary, the court and counsel will select a mutually agreeable date for the trial of the Plaintiff's damages.
The Plaintiff's Motion in Limine is SUSTAINED IN PART and OVERRULED IN
PART as set forth above. The Defendants' Motion in Limine is SUSTAINED. With respect to any matters for which a motion in limine has been granted, it is ORDERED that the parties and their counsel and witnesses shall not mention or refer to such matters in the presence of the jury or offer evidence of such matters to the jury, without counsel first consulting and obtaining express permission from the court outside the presence of the jury. Counsel are DIRECTED to inform the parties and all of their witnesses of this order.
If counsel have any question about the effect of any of these rulings or how they are to be applied to testimony, questioning, or exhibits, these questions should be addressed to the court outside the presence of the jury before the stage of the trial involving the subject of the question is reached. With respect to the rulings on all of the motions in limine, such rulings are always subject to reconsideration, dependent on developments during trial. Any request for such reconsideration is to be addressed to the court outside the presence of the jury.
ALL OF WHICH IS ORDERED.