McCraven v. Sanders et al

Filing 103

ORDER denying 89 Motion in Limine; granting 98 Motion for Twelve Person Jury. Signed by Honorable Robert T. Dawson on December 1, 2009. (dmc)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION JAN MCRAVEN, Guardian of the Person and Estate of Steven McFarland, an Incapacitated Person v. CASE NO. 6:07-cv-06019

PLAINTIFF

JUDY MCMURRIAN, RONALD RADLEY, DAN ANSLEY, JOHN DODGE, J.D. HENRY, and TOMMY L. HARMON ORDER

DEFENDANTS

On this 1st day of December 2009, there comes on for consideration Defendants' Second Motion in Limine; Plaintiff's Motion in Limine to Exclude Dr. James "Butch" Tutton as an Expert Witness; Plaintiff's Third Motion in Limine; Plaintiff's Renewed Motion for Twelve-Person Jury; and other issues raised at the pretrial conference. I. Defendants' Second Motion in Limine The Court has denied Defendants' Second Motion in Limine to exclude evidence relating to the termination of Tommy Harmon. At the pretrial

conference, Defendants requested clarification on Plaintiff's ability to use information in Harmon's personnel file that post-dates the incident of February 13, 2007. In this regard, Plaintiff will be

prohibited from introducing evidence of specific instances of misconduct that occurred after the events in question. However, Plaintiff will be

permitted to introduce evidence of a general nature relating to Harmon's job performance, though it may post-date the events question, if the evidence is connected temporally to the present controversy. For

example, a job evaluation dated March 1, 2007, for the period that includes February 13, 2007, would be admissible while a specific instance of misconduct that occurred on July 2, 2007, would be

inadmissible.

If there is any question regarding the admissibility of

a particular portion of Harmon's personnel file, the parties are instructed to approach the bench for a ruling. II. Plaintiff's Motion in Limine to Exclude Dr. James "Butch" Tutton as an Expert Witness Plaintiff objects that Defendants have not provided the expert disclosures required under Federal Rule 26(a)(2) of Civil Procedure for Dr. James Tutton. The Court's primary concern with respect to the Rule

26(a)(2) disclosures is whether Plaintiff has notice of the topics about which Defendants' expert will testify. Thus, the Court will permit

Defendants to call Dr. Tutton if Plaintiff is given a reasonable opportunity to depose him prior to his being called as a witness at trial. Therefore, Plaintiff's Motion is provisionally DENIED.

III. Plaintiff's Third Motion in Limine The Court has provisionally granted Plaintiff's Motion in Limine with respect to the exclusion of medical records from Steven McFarland's youth and adolescence. Court hereby clarifies its ruling. Per Defendants' request, the We will permit Defendants to

utilize the fact that Steven McFarland was admitted to the hospital for a drug overdose on January 17, 2007, and subsequently attended drug rehabilitation for the limited purpose of impeaching Jan

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McRaven and questioning Dr. Charles Venus about McFarland's life expectancy. Consistent with the Court's prior ruling, the medical Further, the information

records themselves remain inadmissable.

concerning McFarland's prior drug overdose cannot be utilized to support the contention that Defendants were not the proximate cause of McFarland's injury. IV. Plaintiff's Renewed Motion for Twelve-Person Jury Plaintiff requests a jury of twelve members. As her basis,

she points out that numerous county officials will testify and be present during the trial. She states that these individuals could

attempt to influence the outcome of this case, and therefore, a larger jury panel is needed to ensure justice. implicates a broader political context that Because this case could lead to

prejudice, Plaintiff's Motion is GRANTED. V. Other Issues During the pretrial conference, Plaintiff raised two

additional issues.

First, she stated that Arkansas State Trooper

Forest Marks may attempt to return a firearm seized from Steven McFarland while McFarland is present in the courtroom. Firearms

are not permitted in the courthouse, and any attempt to return McFarland's firearm will not be permitted. Second, Plaintiff

stated that the word "Neo-Nazi" appears on a post-arrest inventory of McFarland's automobile. In order for this inventory to be

introduced into evidence, this word must be redacted because it is Page 3 of 4

irrelevant to the issues in this case and highly prejudicial. VI. Conclusion For the reasons stated above, Defendants' Second Motion in Limine is clarified with respect to Plaintiff's ability to utilize information in Tommy Harmon's personnel file; Plaintiff's Motion to Exclude Dr. James "Butch" Tutton is provisionally DENIED;

Plaintiff's Third Motion in Limine is clarified with respect to referencing a drug overdose on January 17, 2007; and Plaintiff's Renewed Motion for Twelve-Person Jury is GRANTED. The Court

further holds that Trooper Marks will not be permitted to bring a firearm into the courthouse and that any "Neo-Nazi" references must be redacted from the police inventory of Steven McFarland's

automobile. IT IS SO ORDERED this 1st day of December 2009. /s/ Robert T. Dawson Honorable Robert T. Dawson United States District Judge

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