Patrick v. City of Birmingham, Alabama et al

Filing 155

MEMORANDUM OPINION AND ORDER. For the reasons stated in open Court and herein, the parties' motions in limine and unresolved objections are GRANTED IN PART, DENIED IN PART, RESERVED IN PART, and WITHDRAWN IN PART as set out herein. Signed by Judge Virginia Emerson Hopkins on 3/28/2013. (JLC)

FILED
2013 Mar-28 PM 02:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EDWARD PATRICK as
Administrator and Personal
Representative of the Estate of Clyde
Patrick,
Plaintiff,
v.
GREGORY EVERETT, et al.,
Defendants.

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) Case No.: 2:09-CV-1825-VEH
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MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION
This Fourth Amendment (by and through 42 U.S.C. § 1983) excessive force

case is set for a jury trial beginning April 1, 2013. (See CM/ECF margin entry dated
Nov. 1, 2012).
Pending before the court are eleven motions in limine all of which were filed
on March 4, 2013: (1) Defendants Officer Scott Hastings, Officer Joe Roberts,
Officer Karl Wilson and Officer Emerson Oldham’s Motion in Limine and
Memorandum in Support (Doc. 130) (“Officers’ Motion”); (2) Defendant Gregory
Everett’s Motion in Limine and Memorandum in Support (Doc. 130) (“Defendant

Everett’s Motion”); (3) Plaintiff’s Motion in Limine (1) Regarding the Scope of
Testimony of Robert M. Brissie, M.D. (Doc. 132) (“Plaintiff’s Brissie Motion”); (4)
Plaintiff’s Motion in Limine (2) Regarding UAB in its Capacity As a Former Party
in this Case (Doc. 133) (“Plaintiff’s UAB as Former Party Motion”); (5) Plaintiff’s
Motion in Limine (3) Regarding UAB in its Capacity As an Alleged Joint Tortfeasor
(Doc. 134) (“Plaintiff’s UAB as Joint Tortfeasor Motion”); (6) Plaintiff’s Motion in
Limine (4) Regarding the Concept of Immunity Or Qualified Immunity (Doc. 135)
(“Plaintiff’s Immunity Motion”); (7) Plaintiff’s Motion in Limine (5) Regarding the
Good Character of the Defendants (Doc. 136) (“Plaintiff’s Good Character Motion”);
(8) Plaintiff’s Motion in Limine (6) Regarding the Defendants’ Wealth Or Ability to
Satisfy Judgment (Doc. 137) (“Plaintiff’s Wealth Motion”); (9) Plaintiff’s Motion in
Limine (7) Regarding “Culpability” Investigations Following the Homicide of Clyde
Patrick (Doc. 139) (“Plaintiff’s Culpability Motion”); (10) Plaintiff’s Motion in
Limine (8) Regarding Prior Contacts Between Patrick and the Birmingham Police
Department Or Fire and Rescue Service (Doc. 140) (“Plaintiff’s Prior Contacts
Motion”); and (11) Plaintiff’s Motion in Limine (9) Regarding the Death of Witness
Elisa Jordan’s Daughter (Doc. 141) (“Plaintiff’s Death of Witness’s Daughter
Motion”).
These motions seek to preclude a number of different documents and witnesses
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at trial primarily on the bases of Rules 401, 402, and 403 of the FEDERAL RULES OF
EVIDENCE . Under the schedule set forth in the pretrial order (Doc. 127) entered on
November 1, 2012, the deadline to respond to the motions in limine ran on March 15,
2013, and responses to these motions have been filed. (Docs. 147, 149, 150).
As for objections to witnesses and exhibits, under the court’s pretrial order
entered in this case:
If there are unresolved objections after the parties consult, the parties
shall, at least fourteen (14) calendar days before trial, submit to the
court, in writing, proposed deposition testimony and trial exhibits and
any unresolved objections thereto. A brief argument may be submitted
at that time, if necessary. The unresolved objections and arguments (if
any) must be emailed to chambers of the undersigned, and a hard copy
of any objected-to exhibits must be delivered to chambers of the
undersigned (via the clerk's office).
(Doc. 127 at 8 (emphasis added)). On March 18, 2013, both Plaintiff and Defendants
submitted unresolved objections to the court via email.
The court held a hearing on all pending motions and objections, and a
preliminary charge conference on Thursday, March 28, 2013. For the reasons stated
in open court and herein, the parties’ motions in limine and unresolved objections are
GRANTED IN PART, DENIED IN PART, RESERVED IN PART, and
WITHDRAWN IN PART.

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II.

STANDARDS
A.

Applicable Evidentiary Rules

Rule 401 defines “relevant evidence” as “evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” FED.
R. EVID. 401. Regarding the admissibility of evidence generally, Rule 402 provides:
All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, by Act of Congress, by these rules, or
by other rules prescribed by the Supreme Court pursuant to statutory
authority. Evidence which is not relevant is not admissible.
FED. R. EVID. 402.
Finally, the exclusionary standard pursuant to Rule 403 states:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.
FED. R. EVID. 403.
B.

Standard of Review

“All evidentiary decisions are reviewed under an abuse-of-discretion standard.”
See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997). “An abuse of
discretion can occur where the district court applies the wrong law, follows the wrong
procedure, bases its decision on clearly erroneous facts, or commits a clear error in
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judgment.” United States v. Estelan, 156 Fed. App’x 185, 196 (11th Cir. 2005)
(citing United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005)).
Moreover, as the Eleventh Circuit has made clear, not every incorrect
evidentiary ruling constitutes reversible error:
Auto-Owners’ second argument is that it is entitled to a new trial
on the basis of what it describes as a number of erroneous evidentiary
rulings by the district court. Evidentiary rulings are also reviewed under
an abuse of discretion standard. Finch v. City of Vernon, 877 F.2d 1497,
1504 (11th Cir. 1989). Moreover, even if Auto-Owners can show that
certain errors were committed, the errors must have affected “substantial
rights” in order to provide the basis for a new trial. See Fed. R. Evid.
103(a). “Error in the admission or exclusion of evidence is harmless if
it does not affect the substantial rights of the parties.” Perry, 734 F.2d
at 1446. See also Allstate Insurance Co. v. James, 845 F.2d 315, 319
(11th Cir. 1988).
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore,
even the existence of many evidentiary errors does not guarantee the appealing party
a new trial. Instead, such erroneous rulings by a district court must “affect the
substantial rights of the parties” in order for reversible error to occur.
III.

RULINGS
The court makes the following evidentiary rulings.1

The following rulings are subject to revision during trial, including, for
example, if a party “opens the door” to an area of evidence which the court prohibited
on the motion of that particular party. However, the court cautions counsel to make
sure before covering any area of evidence prohibited by this order that the court is in
agreement that such introduction before the jury is or has become proper.
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MOTIONS IN LIMINE
As explained more fully below, the parties’ motions in limine are GRANTED
IN PART, DENIED IN PART, and RESERVED IN PART.
A.

Defendants’ Motions in Limine
1.

Officers’ Motion

The Officers’ Motion contains 16 separate subparts. The court addresses each
area below.
a.

Prior Complaints of Wrongdoing

The Officers’ Motion is GRANTED with respect to proof of prior complaints.
Accordingly, counsel for Plaintiff and all witnesses are HEREBY PROHIBITED
from referencing in any manner, except for impeachment or rebuttal purposes,
evidence of reports, internal investigations, allegations, charges, findings, or any
other complaints against Officer Scott Hastings, Officer Joe Roberts, Officer Karl
Wilson and Officer Emerson Oldham or any other current or former Officer of the
Birmingham Police Department, including Defendant Everett, regardless of whether
the charges were sustained, that do not involve alleged excessive force, or that do not
involve the type of excessive force alleged in this case, or that do not involve conduct
by Officer Scott Hastings, Officer Joe Roberts, Officer Karl Wilson, Officer Emerson
Oldham, and Defendant Everett.
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b.

Resolution of Prior Complaints of
Wrongdoing Favorable to Officers

The Officers’ Motion is GRANTED with respect to proof of prior complaints
about wrongdoing that were resolved in a manner favorable to any of the Officers.
Accordingly, counsel for Plaintiff and all witnesses are HEREBY PROHIBITED
from referencing in any manner, except for impeachment or rebuttal purposes,
evidence of complaints about wrongdoing in which the Officers were found to have
acted consistent and in accordance with the City’s policies and procedures.
c.

Complaints of Wrongdoing Made
After August 2, 2007

The Officers’ Motion is GRANTED with respect to proof of complaints about
wrongdoing made after August 2, 2007. Accordingly, counsel for Plaintiff and all
witnesses are HEREBY PROHIBITED from referencing in any manner, except for
impeachment or rebuttal purposes, evidence of complaints made after August 2, 2007,
about wrongdoing relating to any of the Officers.
d.

Clyde Patrick’s Medical History

The Officers’ Motion is RESERVED with respect to their authenticity and
hearsay objections raised relating to Clyde Patrick’s medical records, bills, diagnoses,
treatments, or opinions. The Officers’ Motion is GRANTED with respect to
Plaintiff’s use of a medical expert witness at trial except as to calling Dr. Brissie.
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Accordingly, Plaintiff is HEREBY PROHIBITED from calling any medical experts
at trial with the exception of Dr. Brissie.
e.

“Group Level” Excessive Force

The Officers’ Motion is RESERVED with respect to the issue of “group level”
excessive force.
f.

Notice of Claim

The Officers’ Motion concerning Earl Patrick’s Notice of Claim about the
death of Clyde Patrick filed with the City of Birmingham is GRANTED as
unopposed. Accordingly, counsel for Plaintiff and all witnesses are HEREBY
PROHIBITED from referencing in any manner Earl Patrick’s Notice of Claim.
g.

Notices of Claim Generally

The Officers’ Motion concerning Notices of Claim generally is GRANTED
as unopposed. Accordingly, counsel for Plaintiff and all witnesses are HEREBY
PROHIBITED from referencing in any manner Notices of Claim generally.
h.

Internal Affairs Investigation and
Discharge of Former Officer Everett

The Officers’ Motion is GRANTED with respect to the internal affairs
investigation and discharge of former Birmingham police officer, Defendant Everett,
on April 8, 2011. Accordingly, counsel for Plaintiff and all witnesses are HEREBY

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PROHIBITED from referencing in any manner, except for impeachment or rebuttal
purposes, evidence of the internal affairs investigation and discharge of Defendant
Everett.
i.

Coroner’s Photographs of Clyde
Patrick

The Officers’ Motion is DENIED with respect to any photographs of Clyde
Patrick taken by the Jefferson County Coroner’s Officer.
j.

Non-Listed Witnesses and Exhibits

The Officers’ Motion is GRANTED with respect to any non-listed witnesses
and exhibits as unopposed if applied to all parties.

Accordingly, Plaintiff,

Defendants, and all witnesses are HEREBY PROHIBITED from referencing in any
manner, except for impeachment or rebuttal purposes, any non-listed witnesses or
exhibits.
k.

Non-Punitive Damages

The Officers’ Motion concerning non-punitive damages is GRANTED as
unopposed. Accordingly, counsel for Plaintiff and all witnesses are HEREBY
PROHIBITED from referencing in any manner damages that are non-punitive in
nature.

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l.

Punitive Damages

The Officers’ Motion concerning punitive damages is DENIED as the only
damages available in an Alabama excessive force case resulting in death are punitive.
m.

Parameters of Pretrial Order

The Officers’ Motion is RESERVED with respect to any evidentiary
objections premised upon the parameters of the court’s pretrial order.
n.

General Publicity

The Officers’ Motion is GRANTED with respect to any evidence of general
publicity regarding the events of August 2, 2007, culminating in the death of Clyde
Patrick.

Accordingly, counsel for Plaintiff and all witnesses are HEREBY

PROHIBITED from referencing in any manner, except for impeachment or rebuttal
purposes, all general publicity regarding the events of August 2, 2007, culminating
in the death of Clyde Patrick.
o.

External Investigations

The Officers’ Motion with respect to external investigations is GRANTED as
unopposed. Accordingly, counsel for Plaintiff and all witnesses are HEREBY
PROHIBITED from referencing in any manner proof of any excessive force
investigations conducted by any external state or federal agency.

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p.

Wealth or Poverty

The Officers’ Motion with respect to wealth or poverty of any party is
GRANTED as unopposed given that Plaintiff has filed a similar motion, i.e.,
Plaintiff’s Wealth Motion, which also is GRANTED as set out more fully below.
Accordingly, Plaintiff, Defendants, and all witnesses are HEREBY PROHIBITED
from referencing in any manner the wealth or poverty of any party.
2.

Defendant Everett’s Motion

Defendant Everett’s Motion is limited to the issue of prior complaints made
against him that do not involve the alleged use of deadly force or that involve conduct
by Defendant Everett unrelated to this matter. Defendant Everett’s Motion, as limited
by him, is GRANTED. Accordingly, and consistent with the prior complaint rulings
made above, counsel for Plaintiff and all witnesses are HEREBY PROHIBITED
from referencing in any manner, except for impeachment or rebuttal purposes,
evidence of reports, internal investigations, allegations, charges, findings, or any
other complaints against Defendant Everett that do not involve his alleged use of
deadly force.
B.

Plaintiff’s Motions in Limine
1.

Plaintiff’s Brissie Motion

Plaintiff’s Brissie Motion is GRANTED.
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Accordingly, Dr. Brissie is

HEREBY PROHIBITED from giving, and all counsel for Defendants are HEREBY
PROHIBITED from eliciting, character testimony based upon hearsay, or expert
testimony beyond the scope of Dr. Brissie’s duties as Coroner as applied to his
determination of the cause of Clyde Patrick’s death.
2.

Plaintiff’s UAB as Former Party Motion

Plaintiff’s UAB as Former Party Motion is GRANTED. Accordingly, all
witnesses are HEREBY PROHIBITED from giving and all counsel for Defendants
are HEREBY PROHIBITED from eliciting testimony or arguing or commenting
regarding UAB as a former party to this lawsuit. However, expressly excepted from
the scope of this ruling is the use of such evidence for impeachment or rebuttal
purposes, nor does this ruling exclude any otherwise admissible testimony or
evidence, or argument or comments, regarding the activity of various UAB personnel
at the scene of the incident in question that is relevant to the issue of the activities of
Defendants regarding Plaintiff’s claim of alleged excessive force.
3.

Plaintiff’s UAB as Joint Tortfeasor Motion

Plaintiff’s UAB as Joint Tortfeasor Motion is GRANTED. Accordingly, all
witnesses are HEREBY PROHIBITED from giving and all counsel for Defendants
are HEREBY PROHIBITED from eliciting testimony or arguing or commenting
regarding, UAB’s alleged premature or ill-advised release of Clyde Patrick the
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morning before his encounter with Defendants. However, expressly excepted from
the scope of this ruling is the use of such evidence for impeachment or rebuttal
purposes, nor does this ruling exclude any otherwise admissible testimony or
evidence, or arguments or comments, regarding the activity of various UAB
personnel at the scene of the incident in question that is relevant to the issue of the
activities of Defendants regarding Plaintiff’s claim of alleged excessive force.
4.

Plaintiff’s Immunity Motion

Plaintiff’s Immunity Motion is GRANTED as agreed to by Defendants.
Accordingly, all witnesses are HEREBY PROHIBITED from giving and all counsel
for Defendants are HEREBY PROHIBITED from eliciting testimony or arguing or
commenting about, the concept of qualified immunity in the presence of the jury.
5.

Plaintiff’s Good Character Motion

Plaintiff’s Good Character Motion is GRANTED. Accordingly, all witnesses
are HEREBY PROHIBITED from giving and all counsel for Defendants are
HEREBY PROHIBITED from eliciting testimony or arguing or commenting on, the
alleged good character of Defendants. However, expressly excepted from the scope
of this ruling is the use of such evidence for impeachment or rebuttal purposes, nor
does this ruling exclude any otherwise admissible testimony or evidence, or
arguments or comments, regarding the activity of various UAB personnel at the scene
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of the incident in question that is relevant to the issue of the activities of Defendants
at the scene of the incident in question relevant to Plaintiff’s claim of alleged
excessive force.
6.

Plaintiff’s Wealth Motion

Plaintiff’s Wealth Motion is GRANTED as agreed to by Defendants and as
they have sought a similar wealth-related ruling which the court granted above.
Accordingly, all witnesses are HEREBY PROHIBITED from giving and all counsel
for Defendants and Plaintiff are HEREBY PROHIBITED from eliciting testimony
or arguing or commenting about, Defendants’ lack of insurance or relative wealth or
ability to satisfy a judgment.
7.

Plaintiff’s Culpability Motion

Plaintiff’s Culpability Motion seeks to exclude records from the investigations
conducted by the Birmingham Police Department and the Jefferson County District
Attorney’s Office with respect to determining any culpability for Clyde Patrick’s
death.

More specifically, Plaintiff contends that documents generated by the

Jefferson County District Attorney’s Office are irrelevant because that investigation
involved viewing the evidence under the lens of a criminal standard, not a civil one.
Consistent with the court’s ruling on the Officers’ Motion with respect to records
from any external investigations, this part of Plaintiff’s Culpability Motion is
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GRANTED.
Regarding the second portion of Plaintiff’s Culpability Motion, Plaintiff
maintains that the investigative materials from the Birmingham Police Department
should be excluded on the basis of hearsay and a lack of trustworthiness. Plaintiff
also argues that to the extent these investigative documents are relevant and otherwise
admissible they should still be excluded on the basis of their significant prejudicial
and confusing impact. The court agrees that the limited probative value of these
investigative records is substantially outweighed by their prejudicial and confusing
nature. Accordingly, the Plaintiff’s Culpability Motion is GRANTED, and all
witnesses are HEREBY PROHIBITED from giving and all counsel for Defendants
are HEREBY PROHIBITED from eliciting testimony or arguing or commenting
about, the investigative documents from either the Jefferson County District
Attorney’s Office or the Birmingham Police Department.
8.

Plaintiff’s Prior Contacts Motion

Plaintiff’s Prior Contacts Motion is GRANTED as agreed to by Defendants.
Accordingly, all witnesses are HEREBY PROHIBITED from giving and all counsel
for Defendants are HEREBY PROHIBITED from eliciting testimony or arguing or
commenting about, any prior contacts between Clyde Patrick and the Birmingham
Police Department or Birmingham Fire and Rescue Service.
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9.

Plaintiff’s Death of Witness’s Daughter Motion

Plaintiff’s Death of Witness’s Daughter Motion is GRANTED. Accordingly,
all witnesses are HEREBY PROHIBITED from giving and all counsel for
Defendants are HEREBY PROHIBITED from eliciting testimony or arguing or
commenting regarding, the source of the bracelet or the death of Elisa Jordan’s
daughter. Moreover, Elisa Jordan will not be permitted to testify that the bracelet had
sentimental value, as there is no evidence that Defendants knew that the bracelet had
sentimental value.
UNRESOLVED OBJECTIONS
A.

Defendant’s Unresolved Objections

Defendants have identified four unresolved objections to Plaintiff’s witnesses
and exhibits. As discussed more fully below, Defendants’ unresolved objections are
SUSTAINED IN PART, OVERRULED IN PART, and WITHDRAWN IN
PART.
Objections to Witnesses
The first objection relates to Plaintiff’s witness, Willie Rumph (“Mr. Rumph”).
Defendants maintain that Mr. Rumph should not be allowed to testify because
Plaintiff neither disclosed nor identified him as a witness in accordance with the
applicable procedural rules. As counsel for Plaintiff indicated at the hearing, Mr.
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Rumph cannot be located. Accordingly, Defendants’ objection is SUSTAINED, and
Mr. Rumph is HEREBY EXCLUDED as a witness for Plaintiff.
Objections to Exhibits
The remaining objections relate to Plaintiff’s proposed exhibits. Concerning
the summary chart of weapon discharges (Doc. 45), which document Defendants
acknowledge they became aware of during the summary judgment stage, the objection
relating to Plaintiff’s failure to timely disclose it is OVERRULED. Due to its
underdeveloped nature, the objection premised upon Rule 404(a) is also
OVERRULED. However, for the reasons explained during the hearing, Defendants’
objection relating to the completeness of this summary exhibit is SUSTAINED.
Accordingly, the court will not allow this type of exhibit to be admitted during trial
unless Plaintiff modifies it to include all testing cycles of each taser gun which
occurred prior to 5:00 p.m. on August 2, 2007.
Concerning the UAB Hospital security video (Doc. 53), which Defendants
acknowledge they became aware of through the disclosure of another party, the
objection relating to Plaintiff’s failure to disclose is OVERRULED. Further, as
stated during open court, Defendants’ objections premised upon hearsay, irrelevance,
and lack of completeness are WITHDRAWN. Plaintiff and Defendants will be
permitted to use any portions of the UAB Hospital security video as they choose to
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use.
Concerning pictures of Clyde Patrick taken while he was alive (Doc. 59), as
stated in open court, Defendants’ objection is WITHDRAWN with respect to the one
photograph of Clyde Patrick that Plaintiff intends to use at trial.
B.

Plaintiff’s Unresolved Objections

Plaintiff has listed five unresolved objections to Defendants’ witnesses and
exhibits. As discussed more fully below, Plaintiff’s unresolved objections are
SUSTAINED.
Objections to Witnesses
In terms of witnesses, Plaintiff objects, under Rules 401 and 402, to
Defendants’ calling Lt. Harry Greenburg and Lt. David Marable to testify on the
grounds that they both lack firsthand knowledge of the relevant events that occurred
on August 2, 2007. However, Plaintiff also expressly reserves the right to call either
one of these witnesses for impeachment or rebuttal purposes. For the reasons stated
in open court, Plaintiff’s objections to these two witnesses are SUSTAINED.
Plaintiff also objects to letting Dr. Brissie testify beyond the scope of his
investigation into the cause of Clyde Patrick’s death, as such testimony would be
irrelevant and/or barred by Rule 802. These objections are SUSTAINED, consistent
with the court’s ruling on Plaintiff’s Brissie Motion above.
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Objections to Exhibits
Plaintiff objects to the introduction of the internal investigation file by the
Birmingham Police Department and any awards, commendations, or recognitions of
Defendants. Consistent with the court’s ruling on Plaintiff’s Culpability Motion
above, Plaintiff’s objections to offering materials from the internal investigation file
are SUSTAINED on Rule 403 grounds, and those documents are HEREBY
EXCLUDED.
Further, consistent with the court’s ruling on Plaintiff’s Good Character Motion
above, Plaintiff’s objections to any award-related evidence are SUSTAINED, and
those documents are HEREBY EXCLUDED.
DONE and ORDERED this the 28th day of March, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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