Berry v. Sluder et al

Filing 73

ORDER granting in part and denying in part 54 Defendant's Motion in Limine. If Defendants seek a special instruction regarding the testimony of JaniceSchultz, Defendants shall submit a proposed instruction no later than noon onSeptember 14, 20 15. Defendants shall first confer with Berry to see if astipulated instruction is possible. If Defendants ultimately file a disputedinstruction, Berry shall file a response no later than noon on September 15,2015, by Judge William J. Martinez on 09/09/2015.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2647-WJM-CBS
THERESA BERRY,
Plaintiff,
v.
BRANDON BEAUVAIS and
CHAD GARCIA,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION IN LIMINE

Theresa Berry (“Berry” or “Plaintiff”) sues two Pueblo police officers, Brandon
Beauvais and Chad Garcia (together, “Defendants”), under 42 U.S.C. § 1983, claiming
that Beauvais and Garcia had a duty to intervene to prevent a third officer (Detective
Stephen Jesik, not a defendant here) from applying excessive force to Berry during an
encounter at a Pueblo convenience store. (See ECF Nos. 1, 51.) Defendants now
move in limine to exclude various matters of expected testimony from Berry and from
one of her witnesses. (ECF No. 54.) For the reasons explained below, Defendants’
motion is granted in part and denied in part.
I. ANALYSIS
A.

Testimony of Janice Schultz
Berry intends to call her psychotherapist, Janice Schultz, as a fact witness,

rather than as an expert witness. (ECF No. 46 at 5–6.) Berry had a therapy session

with Schultz in the hours immediately following Berry’s encounter with Defendants, and
has had several more therapy sessions since. Berry says that Schultz will testify as
follows:
1.

“that she is Plaintiff’s therapist”;

2.

“her observations of Plaintiff on the date of the incident”;

3.

“her recommendation that Plaintiff go to the emergency room”;

4.

“Plaintiff’s ‘state of mind’ on the date of the incident and in
subsequent visits”;

5.

“statements Plaintiff made to her about what happened [i.e.,
between her and Defendants]”;

6.

“a lay opinion as to the effect of the incident on Plaintiff.”

(ECF No. 71 at 1–2.) Defendants object to items 3–6. The Court will address each in
turn.
1.

Recommendation to Go to the Emergency Room

Given that Schultz has never been disclosed as an expert witness, Defendants
argue that she should be “unable to testif y that she recommended that Plaintiff seek
further medical treatment as such recommendation would be inseparable from her
position as an expert.” (ECF No. 54 at 4–5.) On this record, however, the Court cannot
sustain this objection. Laypersons routinely encourage each other to seek medical
treatment, and so the Court cannot say that such encouragement is necessarily expert
testimony. On the other hand, if Schultz recommended emergency room treatment
specifically because of some sort of worry or diagnosis stemming from Schultz’s
training as a therapist, the testimony may be objectionable. The Court therefore
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overrules this objection without prejudice.
2.

Berry’s State of Mind on the Date of the Incident and Subsequently

Defendants contend that testimony about Berry’s state of mind is impermissible
for a lay witness. (ECF No. 54 at 4.) As a categorical proposition, Defendants are
incorrect. A witness with sufficient opportunity to observe an individual can make a lay
judgment about that individual’s state of mind (e.g., concluding that the individual was
agitated because she could not stop fidgeting and had difficulty concentrating).
However, Schultz is a specially trained observer of her patients’ state of mind.
Indeed, that is a core function of her job. A risk therefore exists that Schultz’s
specialized training will inform her testimony, thereby converting her testimony into
impermissible expert testimony. The Court cannot anticipate precisely how Schultz will
testify, so Defendants’ objection is overruled without prejudice. The Court nonetheless
provides the following guidance.
To the extent Schultz testifies regarding indicators of Berry’s mental state that
would be outwardly visible to an untrained layperson, and to the extent Schultz uses
laypersons’ language to describe those indicators, Schultz’s testimony is likely
admissible. But, to the extent Schultz testifies regarding more subtle indicators, or
testifies using technical terms (e.g., “affect,” “dysthymic,” etc.), such testimony is likely
inadmissible.
3.

Berry’s Statements to Schultz About How Defendants Allegedly Treated
Berry

Berry anticipates that Defendants will attempt to impeach her account of the
incident, and she therefore intends to have Schultz testify as to the version of events
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allegedly recounted to her by Berry in the hours after the incident. (ECF No. 71 at 2.)
Berry specifically asserts a newly added portion of the Federal Rules of Evidence
regarding prior consistent statements. Before December 1, 2014, a prior consistent
statement could be admitted for the truth of the matter asserted if it was “consistent with
the declarant’s testimony and is offered to rebut an express or implied the charge that
the declarant recently fabricated it or acted from a recent improper influence or motive
in so testifying.” Fed. R. Evid. 801(d)(1)(B) (2014). Effective December 1, 2014,
however, subparagraph (B) was split into two clauses: “(i) to rebut an express or implied
charge that the declarant recently fabricated it or acted from a recent improper
influence or motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a
witness when attacked on another ground[.]” Fed. R. Evid. 801(d)(1)(B) (2015). Berry
invokes clause (ii) as justification to admit Schultz’s testimony of what Berry said to
Schultz on the day of the incident. (ECF No. 71 at 2–3.)
Understanding this new clause requires understanding the overall purpose of
Rule 801(d)(1)(B). From the beginning, this Rule was not intended to ensure
admissibility of prior consistent statements. Such statements had “traditionally . . . been
admissible to rebut charges of recent fabrication or improper influence or motive.” Fed.
R. Evid. 801, Committee Commentary to 1972 Proposed Rules. Rule 801(d)(1)(B) was
not intended to change that. See Tome v. United States, 513 U.S. 150, 156–57 (1995).
Rather, the purpose of Rule 801(d)(1)(B) was to expand the use of such statements,
admitting them not only as pure rehabilitative evidence but also as substantive evidence
—i.e., evidence of the truth of the matter asserted. Id.
According to the committee commentary on the most recent amendment, clause
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(ii) addresses prior consistent statements offered for purposes other than to rebut a
charge of recent fabrication, such as “consistent statements that are probative to
explain what otherwise appears to be an inconsistency in the witness’s testimony” and
“consistent statements that would be probative to rebut a charge of faulty memory.”
Fed. R. Evid. 801, Committee Commentary to 2014 Amendments. The committee saw
that the Rule, as originally written, left these sorts of prior consistent statements
“potentially admissible only for the limited purpose of rehabilitating a witness’s
credibility,” not as substantive evidence. Id. Clause (ii) clarifies that such statements
may be treated as substantive evidence. Nonetheless, “[a]s before, prior consistent
statements under the amendment may be brought before the factfinder only if they
properly rehabilitate a witness whose credibility has been attacked.” Id.
Berry does not explain precisely what sort of impeachment she expects from
Defendants that would open the door to admitting Schultz’s testimony under clause (ii)
for the truth of the matter asserted. She gives no indication that her testimony may be
attacked as inconsistent or based on faulty memory. But assuming such an attack
takes place, clause (ii) would likely allow Schultz’s testimony both for its rehabilitative
effect and for the truth of the matter asserted.
Berry does not defend Schultz’s expected testimony under clause (i)—the Rule’s
original language admitting prior consistent statements “to rebut an express or implied
charge that the declarant recently fabricated it or acted from a recent improper
influence or motive”—but Defendants argue that clause (i) cannot apply because “the
prior statement must antedate the improper influence or motive to fabricate” and Berry’s
statements to Schultz were “subject to the same motive to portray herself as a victim to
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her therapist in order to cover her own bad behavior.” (ECF No. 54 at 6.) Given Berry’s
failure to respond to this argument, the Court deems it conceded that Schultz’s retelling
of Berry’s account of the incident may not be admitted for the truth of the matter
asserted under clause (i). Cf. Zinna v. Bd. of Cnty. Comm’rs of the Cnty. of Jefferson,
250 F.R.D. 527, 529 (D. Colo. 2007) (party deemed to have confessed a motion by
failing to respond).
Accordingly, Defendants’ objection is sustained with respect to Rule
801(d)(1)(B)(i) but overruled with respect to Rule 801(d)(1)(B)(ii).
4.

Lay Opinion About the Effect of the Incident on Berry

The Court sustains Defendants’ objection to Schultz offering a “lay opinion as to
the effect of the incident on Plaintiff.” (ECF No. 71 at 1–2.) The Court presumes that
Berry wants Schultz to offer such an opinion to support Berry’s claim of ongoing mental
and emotional suffering allegedly caused by her encounter with Defendants. But there
will already be a difficult line to draw regarding Schultz’s testimony about Berry’s state
of mind. (See Part I.A.2, supra.) Given Schultz’s professional training and the fact that
her professional training is precisely why she has a relationship with Berry, the Court
believes this line will be essentially impossible to discern if Schultz is allowed to offer an
opinion about how Berry’s encounter with police has affected her mentally and
emotionally over the long term. Accordingly, Schultz will not be permitted to offer a “lay
opinion as to the effect of the incident on Plaintiff.” (ECF No. 71 at 1–2.)
5.

Defendants’ Request for a Jury Instruction

Defendants request that the Court “instruct the jury that Ms. Schultz has not
been called as an expert witness and that her testimony should not be given any more
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or less weight than any other witness.” (ECF No. 54 at 5.) The Court is willing to
entertain an instruction if submitted promptly, as set forth below.
B.

Medical Evidence
Defendants requested that Berry be forbidden to testify “regarding any medical

diagnosis of injury, causation attributed to the incident, and the a mount of medical
expenses attributable to any conduct of a Defendant” because: (1) these matters
require expert testimony, of which Berry has none; and (2) testimony about things her
doctors may have said to her would be hearsay. Berry concedes that she “may not
testify as to what [medical] providers told her about her condition,” but “she can testif y
that she saw certain providers for treatment since those matters are within her personal
knowledge, and she can testify as to her own pain and suffering since that is based on
her ‘perceptions and feelings.’” (ECF No. 71 at 3.)
On this record, it is simply not clear what Berry intends to say about her own
medical condition or about medical bills. Thus, the Court overrules Defendants’
objection without prejudice but provides the following guidance.
Courts have allowed lay testimony about medical causation in cases where
causation is fairly obvious. For example, in a prison brutality case, the Seventh Circuit
permitted a prisoner to testify about the connection between being beaten by a prison
guard and the pain he subsequently felt: “No expert testimony is required to assist
jurors in determining the cause of injuries that are within their common experiences or
observations. Here, the cause of [the prisoner’s] pain was perfectly clear: [the guard]
beat him.” Hendrickson v. Cooper, 589 F.3d 887, 892 (7th Cir. 2009) (citation om itted).
However, various courts have noted that whether a stressful incident caused a
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flare-up in a preexisting condition is not within a jury’s competence to judge without
expert causation testimony. See, e.g., Xodus v. The Wackenhut Corp., 626 F. Supp.
2d 861, 865 (N.D. Ill. 2009); Kiesz v. Gen. Parts, Inc., 2007 WL 963489, at *15 (D.S.D.
Mar. 28, 2007). Even apart from the preexisting condition context, medical causation is
usually a matter for expert testimony. See, e.g., Gidley v. Oliveri, 641 F. Supp. 2d 92,
106 (D.N.H. 2009); Hargis v. Atl. Cnty. Justice Facility, 2014 WL 1713461, at *7 (D.N.J.
Apr. 28, 2014); Henry v. O’Charley’s Inc., 2013 WL 786417, at *7 (W.D. La. Mar. 1,
2013); cf. Montoya v. Sheldon, 286 F.R.D. 602, 614 (D.N.M. 2012) (“A treating
physician’s opinions regarding diagnosis of a medical condition is almost always expert
testimony, because diagnosis requires judgment based on scientific, technical, or
specialized knowledge in almost every case.”).
Thus, to the extent Berry confines her testimony to acute injuries allegedly
attributable to Defendants, and the treatment she received for those injuries, her
testimony is likely admissible. But, to the extent Berry attributes ongoing injuries and
expenses, or aggravation of preexisting injuries, to Defendants’ conduct, the Court will
much more closely scrutinize her testimony to ensure that it does not cross the line into
matters requiring an expert opinion.
C.

Evidence or Argument of Illegal or Unconstitutional Seizure
This Court ruled at summary judgment that Defendants could not be held liable

for Berry’s original handcuffing, which she argued was an unconstitutional seizure.
(ECF No. 51 at 8–9.) Defendants therefore request that the Court exclude evidence
and argument about the seizure itself as either irrelevant or at least inadmissible under

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Rule 403. (ECF No. 54 at 8.) Berry responds that this Court only ruled that Defendants
could not be liable for an unconstitutional seizure, not that an unconstitutional seizure
never happened. (ECF No. 71 at 4.) Berry also argues that the handcuffing is
inextricably intertwined with the alleged use of force. (Id.)
The Court agrees with Berry that evidence of the handcuffing must necessarily
come in to tell the story of what allegedly happened to Berry that day. Moreover,
whether Detective Jesik too hastily applied handcuffs is probative to the question of
whether he subsequently applied excessive force, which remains a matter in dispute
between the parties. Accordingly, Defendants’ objections in this regard are overruled.
II. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendants’ Motion in Limine (ECF No. 54) is GRANTED IN PART and DENIED
IN PART as stated above.

2.

If Defendants seek a special instruction regarding the testimony of Janice
Schultz, Defendants shall submit a proposed instruction no later than noon on
September 14, 2015. Defendants shall first confer with Berry to see if a
stipulated instruction is possible. If Defendants ultimately file a disputed
instruction, Berry shall file a response no later than noon on Septem ber 15,
2015.

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Dated this 9th day of September, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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