Ortiz, et al v. Chgo, Cty of, et al

Filing 671

MOTION by Defendants City of Chicago, Beverly Gilchrist, Martha Gomez, D. Holmes, Avers Jamison, M. Ramirez, William Wallace, Diane Yost for judgment as a Matter of Law, MOTION by Defendants City of Chicago, Beverly Gilchrist, Martha Gomez, D. Holmes, Avers Jamison, M. Ramirez, William Wallace, Diane Yost for new trial (Fordyce, Tiffany)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
APRIL ORTIZ, as Administrator for THE
ESTATE OF MAY MOLINA,

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Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

Case No. 04 C 7423
Hon. John F. Grady
United States District Court Judge
Hon. Arlander Keys
United States Magistrate Judge

DEFENDANT CITY OF CHICAGO’S MOTION FOR JUDGMENT AS A MATTER OF
LAW AND ALL DEFENDANTS’ MOTION FOR A NEW TRIAL
Defendants Avis Jamison, Martha Gomez, Maja Ramirez, Debra Holmes, Diane Yost,
Beverly Gilchrist, Arthurine Pryor, William Wallace, and the City of Chicago (collectively
“Defendants”), by their undersigned attorneys and pursuant to Federal Rules of Civil Procedure
50(b) and 59(a), hereby move the Court to grant the City of Chicago’s (“City”) renewed Motion
for Judgment as a Matter of Law and all Defendants’ Motion for a New Trial on all remaining
claims:
1.

Defendants respectfully submit that the Court committed reversible error that

prejudiced Defendants ability to get a fair trial in several respects. For the reasons set forth
below, and as detailed more fully on Defendants’ Memorandum of Law filed concurrently
herewith (“Memo of Law”), Defendants request that the Court grant their Motion, enter a verdict
in favor of the City on Plaintiff Salvador Ortiz’s (“Ortiz” or “Plaintiff”) Monell claim, and grant
the Defendants a new trial on the remaining claims specific to the death in lockup of May Molina
(“Molina”).
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2.

The City of Chicago renews its Motion for Judgment as a Matter of Law on the

ground that Ortiz failed to meet its burden of proof on the following elements necessary to
prevail on a Monell claim: (1) there was a widespread practice of denying medication or medical
attention to detainees in Chicago Police Department lockups; (2) the City’s policies and practices
posed a substantial risk of denying medical attention to arrestees in lockup; (3) the
Superintendent had knowledge of any deficiencies in the City’s provision of medical attention to
detainees in lockup, including that that the City’s practices created a substantial risk of harm; and
(4) there is a constitutional requirement to have a medically trained person in police lockup.
3.

As detailed more fully in Defendants’ Memo of Law, Ortiz failed to make the

necessary showing of “widespread enduring practices that violate constitutional rights in a
systematic manner” because Ortiz only established harm to a single individual—May Molina
(“Molina”) Cornfield by Lewis v. Consolidated High Sch. Dist. No. 203, 991 F.2d 1316, 1326
(7th Cir. 1993). Similarly, Ortiz provided no evidence of a substantial risk of harm to detainees
since there was no proof that any detainees in the relevant four year period, except Molina,
required medication or medical attention while in lockup. Accordingly, Ortiz did not prove up
the series of bad acts necessary to establish Monell liability. See Wells v. City of Chicago, Case
No. 09 C 1198, 2012 WL 116040, *17 (N.D. Ill. Jan. 16, 2012). Moreover, Ortiz did not provide
a shred of evidence that the Superintendent of the Chicago Police Department had actual
knowledge of any constitutional violation, much less a widespread practice of such violations.
Palmer v. Marion Cty., 327 F.3d 588, 596 (7th Cir. 2003).
4.

Separate and independent grounds exist to grant Defendants a new trial because of

several erroneous rulings from the Court that were prejudicial to Defendants, resulting in their
inability to receive a fair trial.

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5.

First, the Order excluding the Illinois Medical Examiner, Dr. Eupil Choi, from

testifying about cause of death was erroneous.

For the reasons detailed more fully in

Defendants’ Memorandum of Law, Choi had sufficient information to reach his conclusion, and
his determination as to cause of death fully comported with Federal Rule of Evidence 702, as
well as Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594-95 (1993) and its progeny.
6.

Moreover, the Court made several erroneous rulings with respect to the jury

instructions, including eliminating the element that Ortiz was required to prove a widespread
constitutional violation. Calhoun c. Ramsey, 408 F.3d 375, 379-80 (7th Cir. 2005). In addition,
the Court’s instruction with respect to deliberate indifference was erroneous, and lowered the bar
for what Ortiz was required to prove. The Court further lowered the bar for Ortiz’s burden of
proof when it instructed the jury that to establish liability, Ortiz only had to prove that the final
policymaker “allowed” a practice to continue, rather than the correct heightened standard that the
policymaker acquiesced to a particular practice or turned a blind eye toward it. Lanigan v.
Village of East Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997). Furthermore, the Court gave an
improper definition of the term “medical need” as it is used in a Section 1983 claim by not
instructing the jury that the need must be “serious,” thereby lowering the bar even further for
Ortiz’s burden of proof. See Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008) (only
serious injuries or signs of serious injuries amount to a constitutional violation). Additionally,
Ortiz was permitted to specify what the alleged Monell violation was toward the end of the trial,
causing Defendants to shoot in the dark as to its defense during the preceding weeks, and
permitting Ortiz to morph his Monell claim continuously depending on how the jury and Court
reacted to certain arguments. Ortiz’s submission of a late proposed jury instruction defining the
scope of the alleged Monell violation was improper and prejudiced Defendants.

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7.

The Court also abused its discretion in response to several jury notes tendered

during deliberations. As set forth more fully in Defendants’ Memorandum of Law, the Court’s
responses misstated the law, and unduly highlighted certain elements that were more helpful to
Ortiz’s theory of the case, while minimizing other elements that Ortiz was required to prove,
often related to those defenses about which Defendants had provided ample evidence. The
response to the jury notes were prejudicial to Defendants and warrant a new trial. United States
v. Harris, 388 F.2d 373, 377 (7th Cir. 1977) (reversing and remaining as a result of additional
instructions given to jury in response to jury notes).
8.

In addition, the Court gave a Statement of the Case to the venire that contained

some specific information that was inaccurate, and generally contained a biased summary of the
facts and burden of proof such that Defendants were denied a fair and impartial jury from the
start.
9.

The Court also erred by allowing Plaintiff’s police practice’s expert, Michael

Brasfield (“Brasfield”) to testify about both the number of arrestees who should have been
transported to a hospital for medical attention based on information contained in the Arrest
Reports, as well as statistics regarding time in lockup. The data upon which Brasfield relied was
provided to him by Plaintiff’s counsel, and not the type of information upon which experts in the
field reasonably rely. Defendants had sought to bar such testimony before trial started, but the
Court denied their Motion. (Ex. 5: Oct. 7, 2013 Tr., p. 144.) It was only after Brasfield testified
extensively about these topics that the Court excluded the testimony, but refused to give a
curative instruction regarding Brasfield’s opinions pertaining to time in lockup. Brasfield’s
opinions were improper and should have been excluded. Loeffel Steel Prods., Inc. v. Delta

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Brands, Inc., 387 F.Supp.2d 794, 817 (N.D. Ill. 2005) (excluding purported expert witness
testimony where opinions were derived from information provided by defense counsel).
10.

The Brasfield problem was exacerbated by Plaintiff’s attorney Sean Goodwin

(“Goodwin”) who was permitted to testify extensively about statistical analyses that he
performed and that Defendants’ statistician, Judy Roberts, (“Roberts”) approved without any
foundation. First, Goodwin is not a statistician, he is a patent attorney, and he possesses no
expertise that would allow him to offer the testimony that he proffered. Second, Roberts did not
condone Plaintiff’s figures or their methodology to reach a number for how many people should
have been transported to the hospital based only on limited information contained in the Arrest
Reports, and Goodwin had no basis to testify otherwise. Third, Goodwin was permitted to testify
about the very statistical figure that the Court previously barred Brasfield from discussing since
it was clear that the Arrest Reports did not reflect all of the information required to ascertain who
“needed” to see a doctor or receive medication, but rather only recorded the fact that a medical
condition existed. Goodwin’s testimony was improper, highly prejudicial, and should have been
excluded.
11.

The Court also erred by excluding third-party witness Jasmine Vaccarello’s

(“Vaccarello”) prior drug use and a limited, relevant amount of her arrest history notwithstanding
that the Seventh Circuit has held that such information is probative to a witness’ credibility and
ability to recall events. See e.g. United States v. Romadine, 289 Fed.Appx. 120, 128 (7th Cir.
2008) (drug use is “fodder for impeachment” if “there is serious reason to believe that drugs
‘had seriously impaired his memory or had prevented him from understanding the events about
which he testified when they took place.’” Vaccarello’s testimony that Molina cried out for help

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and the guards ignored her was highly detrimental and should have been placed in its proper
context.
12.

Vaccarello and another witness, Diane Rice, (“Rice”) were permitted to testify

regarding hearsay statements about which no hearsay exception applied.

Admitting this

testimony constituted reversible error and should result in a new trial.
13.

The Court’s order to sup sponte order Defendants to produce documents Ortiz

used to attack the credibility of Defendants’ experts—documents that Ortiz himself never
requested—also was erroneous and justified granting Defendants a new trial. Kedzior v. Talman
Home Fed. Sav. & Loan Ass’n of Ill., No. 89 C 4188, 1990 WL 70855, *3 (N.D. Ill. May 10,
1990) (“it is entirely inappropriate for this court to compel production of documents plaintiff has
never formally requested”).
14.

The Court erred by disregarding the Rule of Completeness and allowing the jury

to receive a cherry-picked portion of Robert’s expert witness report without admitting those
portions of the report that explained the excerpt and put it in its proper context. FED. R. EVID.
106. This decision prejudiced Defendants by giving the jury the false impression that Roberts
agreed with a statistical analysis performed by Plaintiff’s medical expert, Nathaniel Evans, when
in fact she criticized it and determined it had no statistical relevance.
15.

For these reasons, and as detailed more fully in Defendants’ Memorandum of

Law Filed Concurrently herewith, Defendants respectfully request that this Court grant its
Motion, issue a verdict in favor of the City on Plaintiff’s Monell claim, and grant Defendants a
new trial on all remaining claims.
WHEREFORE, for the reasons set forth above, Defendants respectfully move this Court
to grant this Motion in its entirety, and for all other relief that this Court deems just and proper.

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Dated: December 3, 2013

Respectfully submitted,
/s/ Tiffany S. Fordyce
One of the Defendants’ Attorneys
John F. Gibbons (Attorney No. 6190493)
Tiffany S. Fordyce (Attorney No. 235063)
Tanisha R. Reed (Attorney No. 6283173)
Special Assistant Corporation Counsel
GREENBERG TRAURIG, LLP
77 West Wacker Drive, Suite 3100
Chicago, Illinois 60601
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
I, Tiffany S. Fordyce, an attorney, hereby certify that, on December 3, 2013, I
served the foregoing Defendants’ Motion for Judgment as a Matter of Law and Motion
for a New Trial on all counsel of record via ecf electronic service.

/s/ Tiffany S. Fordyce
One of Defendants’ Attorneys

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