Gaillard v. Commins et al

Filing 92

ORDER denying 83 Motion in Limine. Signed by Chief Judge William H. Steele on 10/29/2014. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WINSTON GAILLARD, etc.,

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) CIVIL ACTION 12-0228-WS-N
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Plaintiff,
v.
CITY OF SATSUMA, et al.,
Defendants.

ORDER
This action is before the Court on the plaintiff’s motion in limine. (Doc.
83). The defendant has filed a response, (Doc. 90), and the motion is ripe for
resolution.
I. Criminal Charges and/or Convictions.
The plaintiff invokes Rules 404(b) and 403 to preclude evidence that his
decedent had one or more prior criminal convictions and had pending charges at
the time of his death. (Doc. 83 at 1). The defendant asserts he does not seek to
introduce this evidence in order to show the decedent’s bad character. (Doc. 90 at
1).
The defendant points out that the plaintiff has indicated he will argue that
the defendant violated the standards for vehicle pursuit and that such conduct is
part of the wrongdoing for which punitive damages should be awarded under his
wrongful death claim. (Doc. 90 at 2).1 The defendant argues that whether, and to
what extent, the vehicle pursuit was wrongful or reasonable depends in part on
what the pursuing officers knew of the decedent’s criminal history. Even though
1

The plaintiff has plainly made this argument. (Doc. 73 at 6-7).

the defendant did not know the decedent’s criminal history, he was following
other law enforcement officers (including his superior) who were aware of that
history. (Id. at 2-3).
The Court does not know enough about how the plaintiff will present his
claim to grant his motion. It may be that the plaintiff will abandon any reliance on
irregularities in the vehicle pursuit, or it may be that he will address only
perceived deficiencies in the pursuit as to which the decedent’s criminal history,
and the pursuing officers’ awareness of it, are irrelevant. At this point, however,
the Court cannot say. Accordingly, the plaintiff’s motion is denied, without
prejudice to his ability to renew the motion, if and as appropriate, at trial.2
II. Present Criminal Conduct.
There is evidence that the decedent was transporting illegal drugs at the
time of the vehicle pursuit and that the pursuit was in response to this information.
The plaintiff argues that evidence the decedent was transporting drugs should be
excluded under Rule 404(b) and because, since he died before charges were
brought, they were abated. (Doc. 83 at 1-2).
Pending criminal charges may abate when the defendant dies prior to a final
conviction,3 but that principle hardly renders criminal conduct irrelevant to a civil
proceeding. And, as the defendant notes, (Doc. 90 at 4), evidence of the
decedent’s criminal conduct at the time of his death is not offered to prove his
character but to “complete the story” of why the chase occurred and why it
continued as it did after the decedent abandoned the vehicle. The plaintiff’s
motion is denied.

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Because the issue will not by then be resolved, the defendant is ordered not to
suggest to the venire during jury selection, or to the jury in opening statement, that the
decedent had a criminal history.
3

See, e.g., United States v. Koblan, 478 F.3d 1324, 1325 (11th Cir. 2007).
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III. Testimony Regarding Events.
The plaintiff seeks to exclude witness testimony concerning any of the
events depicted on the defendant’s car camera, on the grounds that the video
“more accurately convey[s]” what occurred than could eyewitness testimony.
(Doc. 83 at 2). The plaintiff identifies, and the Court is aware of, no rule that
precludes testimony simply because there is additional evidence in the form of
video images. He does not invoke Scott v. Harris, 550 U.S. 372 (2007), nor has he
shown that the video so conclusively establishes all relevant facts concerning the
critical few seconds before impact that no properly functioning jury could credit
an eyewitness account.4 The plaintiff’s motion is denied.
IV. Influence of Adrenaline.
The plaintiff argues that defense expert Ken Katsaris is unqualified to
render an opinion as to whether the defendant was acting under the influence of
adrenaline. (Doc. 83 at 2). The plaintiff has already raised this argument, which
the Court has rejected. (Doc. 81 at 4-5). That ruling stands, and Katsaris will be
permitted “to testify as to those indicators [of adrenaline-affected driving] and
whether … they appear to have been present or absent.” (Id. at 5). The plaintiff’s
motion is denied.
V. Mental State.
The plaintiff seeks to preclude Katsaris from testifying as to whether the
defendant acted intentionally. (Doc. 83 at 3). The Court has already ruled that
Katsaris “cannot offer any opinion that there is no evidence the defendant
intentionally struck” the decedent. (Doc. 81 at 5). That ruling stands, and the
plaintiff’s motion is thus denied as moot.

4

On appeal, the Eleventh Circuit noted that the video’s vision of field is narrower
than the whole. (Doc. 56 at 7 n.2).
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The heading of this section (but not its body) seeks to preclude Katsaris
from testifying that the defendant was negligent when he struck the decedent.
(Doc. 83 at 3). The defendant disavows any intent of eliciting such testimony;
instead, the defendant indicates he will elicit opinions concerning the consistency
of the defendant’s conduct with an effort to establish a perimeter and concerning
the defendant’s lack of time to take evasive action. (Doc. 90 at 6). Because the
defendant does not intend to elicit opinion testimony that the defendant was
merely negligent, to this extent the motion is denied as moot.
VI. Pursuit.
The plaintiff seeks to exclude testimony from Katsaris that the pursuit had
ended before the impact. (Doc. 83 at 3-4). The defendant has confirmed that
Katsaris will not offer any such testimony, because he agrees that the pursuit
continued throughout. (Doc. 90 at 6-7). Accordingly, the plaintiff’s motion is
denied as moot.
VII. Tripping.
The plaintiff seeks to preclude defense expert Joey Parker from testifying
that the decedent tripped and fell before impact with the defendant’s vehicle, on
the grounds that whether he did so is “immaterial” to the case. (Doc. 83 at 4).
The plaintiff previously raised this argument, and the Court rejected it because the
plaintiff did not explain how such testimony could be immaterial. (Doc. 81 at 4).
He still does not do so. To the extent he believes the decedent would have been
struck whether or not he had tripped and fallen, he has not shown that no properly
functioning jury could find otherwise. The plaintiff’s motion is denied.
DONE and ORDERED this 29th day of October, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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