Padilla et al v. City Of Chicago et al

Filing 677

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 12/3/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NOEL PADILLA, et al.,
Plaintiffs,
v.
CITY OF CHICAGO, et al.,
Defendants.

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No.

06 C 5462

MEMORANDUM OPINION AND ORDER
This Court’s October 2, 2013 memorandum opinion and order
(“Opinion”) dealt with most (though not all) of defendants’ 10
motions in limine in this action (consideration of a few of those
motions was deferred because they interfaced with some of
plaintiffs’ 13 motions in limine, one of which was not ripe for
decision because not yet responded to by two of the defendants).
Although the briefing process was completed in the latter respect
nearly two months ago, the pressures of other high-priority
proceedings in other cases on this Court’s calendar have blocked
the disposition of the remaining motions until now.
After a thorough review of the parties’ submissions, it
appears that the most orderly approach to the remaining matters
on both sides of the “v.” sign calls for consideration of
plaintiffs’ motions seriatim (with any related open items on
defendants’ side to be folded into that treatment).

After that

analysis has been completed, this opinion will turn to whatever

discussion remains relevant on defendants’ previously-undisposedof motions.1
First, P. Motion 1 (Dkt. 609) seeks “to exclude evidence of
Noel Padilla’s unrelated arrests and convictions.”

Because

attempting to define the notion of what is “unrelated” would
really add nothing to the appropriate analytical inquiry, the
discussion here will eschew its use.
Instead the analysis of P. Motion 1 can best begin with
defendants’ disclaimer (Dkt. 659 at 2) of the introduction of
prior arrests of Noel Padilla (“Noel”) that did not lead to
convictions, coupled with their agreement that any convictions
that grew out of such arrests but are over ten years old “are
outside the parameters identified in Rule 609(b).”2

Defendants

go on to hedge those concessions, however, by holding out the
prospect that Noel may “open the door to allow defendants the
ability to introduce evidence of his arrest history to contradict
a false rosy picture of his character, as it goes directly to the
appropriate amount of damages,” citing Cobige v. City of Chicago,
651 F.3d 780 (7th Cir. 2011) for that purpose.

This Court takes

a dim view of that prospect--the type of special factor that led

1

Paralleling the treatment in the Opinion, plaintiffs’
motions will be cited “P. Motion --” and defendants’ motions will
be cited “D. Motion--.”
2

That speaks of a provision of the Federal Rules of
Evidence. This opinion will likewise employ “Rule” for that
purpose.
2

to the ruling in Cobige, id. at 785 is not present here so as to
call for admissibility of such evidence under the balancing
called for by Rule 403.
More substantively, Noel did have one felony conviction
that, because imposed in 2003, does not qualify for exclusion
under Rule 609(b).

But that conviction poses three ironies that

are apparently lost on defense counsel and that call for its
exclusion:
1.

Because the gravamen of the 2003 conviction was

Noel’s possession of a gun because he had a prior felony,
its introduction into evidence would be a back door way of
apprising the jury of the earlier conviction that
Rule 609(b) would otherwise bar from the jury’s
consideration.
2.

Possession of a gun as such has since been declared

by the Supreme Court to be a constitutional right (this
Court is not suggesting that the criminalization of such
possession by a previously-convicted felon is invalid--it is
rather than when the factors identified in this and the
preceding sentence are looked at separately, the ironies
referred to earlier become apparent).
3.

More importantly in substantive terms, the

conviction at issue was not for a crimen falsi (see Rule
609(a)(2)).

Hence in terms of probative value in the Rule

3

403 balancing process, the 2003 conviction carries little
heft.
In summary, this Court holds that the 2003 conviction
sustained by Noel should be excluded from evidence because the
unfair prejudice caused by its admission would substantially
outweigh its probative value.

And together with what has been

said earlier, that calls for the granting of P. Motion 1 (Dkt.
609) in its entirety.
P. Motion 2 (Dkt. 610) seeks to exclude “any evidence,
argument or reference to Mr. Padilla’s use of marijuana on
October 15, 2005 or on any other date.”

Defendants’ response

(Dkt. 665 at 1) states simply:
Defendants have no intention of using this evidence
affirmatively or in any improper argument.
But having said that, defendants’ response again seeks to hedge
their bet by raising the specter that plaintiffs may “open the
door” to such evidence--again attempting to call Cobige to their
aid.

This Court grants P. Motion 2 (Dkt. 610), making it clear

as well that any effort by defense counsel to back door the issue
at trial will be met with skepticism.
P. Motion 3 (Dkt. 611) shifts attention to plaintiff Irene
Santiago, this time seeking “to exclude any testimony, evidence,
argument or comment relating to Irene’s former work as a dancer.”
Defendants’ response (Dkt. 660 at 1) asserts:

4

Such a motion is premature because this evidence may be
relevant to challenge the witness’ credibility on the
amount of damages suffered.
Because that response is entirely speculative, P. Motion 3 (Dkt.
611) will be granted, but both sides should understand that this
ruling (based on Rule 403 balancing and the limited probative
value of the evidence as such) may be revisited at trial.
P. Motion 4 (Dkt. 612) asks for the exclusion of “any
evidence, reference or argument relating to Mr. Padilla’s
employment history and tax returns.”

That motion correctly

points out that with Noel’s objection to civil rights abuses
having already been established, what remains is to determine
“the damages owed to him as a result of his false arrest and
malicious prosecution”--a subject as to which the objected-to
evidence is irrelevant.
Once again defendants’ response seeks to ride the Cobige
horse, stating:
Defendants do not intend to use evidence of Noel
Padilla’s stagnant work history or failure to file tax
returns in any improper fashion. However, such
evidence may be relevant in the event that Plaintiff
testifies regarding inability to work or provide for
his family as a result of this matter. Such testimony
would open the door and make this information both
relevant and admissible.
That appears to make sense, although it too is speculative--and
that being so, the same disposition just made of P. Motion 3
applies here as well:

P. Motion 4 (Dkt. 612) is also granted,

5

with this Court prepared to take a fresh look as the issues
evolve at trial.
P. Motion 5 (Dkt. 613) asks that this Court “bar defendants
from presenting any evidence, reference or argument relating to
Noel Padilla and Irene Santiago’s challenges with their personal
relationship.”

According to that motion, the couple started

dating when they were teenagers and have three children--boys who
are 8, 6 and 5 years old.

As P. Motion 5 at 1 states:

Although they were in a committed relationship for many
years, they have had struggles in their relationship
and separated from time-to-time. They are currently
separated.
Defendants respond that it is insufficient to support such a
ban simply to assure that Noel will not claim any damages based
on the couple’s separation.

As defendants would have it, “their

relationship issues have a deeper relevance to the issues that
remain besides damages based on loss and separation.”

But when

push comes to shove, what defendants assert is that the evidence
will show that the officers’ entry into Irene Santiago’s home was
consensual, a contention that seems puzzling because what are
currently at issue for trial are only Noel’s damages from his
malicious prosecution and imprisonment in Cook County Jail.
What cannot be permitted in any event is what Judge Posner
has referred to in another context as “dwelling lovingly” on
whatever problems existed or now exist in the couple’s
relationship.

For now P. Motion 5 (Dkt. 613) is also granted,
6

but this Court remains open to defendants’ fleshing out why some
limited reference to the couple’s troubled relationship may be
relevant to what remains for decision at trial.
P. Motion 6 (Dkt. 614) asks that defendants be barred “from
presenting any argument, making any reference, or introducing any
evidence that Noel Padilla engaged in a drug transaction or
possessed cocaine on October 15, 2005.”

When this Court granted

summary judgment in Noel’s favor on his Section 1983 and Illinois
false arrest claims, it found that “a jury must necessarily find
that at the time of his arrest Mr. Padilla was standing alone
outside and did not possess any drugs, yet was arrested for
delivering cocaine.”

And this Court’s ruling went farther,

extending to a determination that probable cause to believe that
Noel had committed any crime was lacking and that the only
“evidence” as to a drug transaction was contained in inadmissible
and unreliable hearsay reports written by defendants themselves.
As with P. Motion 5, defendants’ responsive contention is
that they had a legitimate basis for having been led to Irene
Santiago’s home, so that defendants were assertedly not “rogue
police officers who indiscriminately unlawfully searched and
robbed people’s homes.”

Apparently the distinction urged by the

defendant officers’ disclaimer is that they might have had
legitimate access to people’s homes, ignoring the fact that they
then did conduct themselves as “rogue police officers” by the

7

depredations that they then visited on the people whose homes
they had entered legitimately.
If then the issue of consensual entry into Irene Santiago’s
house is placed before the jury, it would necessarily seem that
this Court’s earlier-referred-to holdings in the summary judgment
aspect of this case (as well as its other holdings adverse to
defendants) should also be made known to the jury.

All of this

is a subject that may call for further exploration between now
and the time for trial.

But in the meantime P. Motion 6 (Dkt.

614) is granted in principal part, while perhaps being subject to
denial in lesser part.
P. Motion 7 (Dkt. 615) is best described by a direct
quotation.

What plaintiffs’ counsel ask of this Court is to:

(1) bind Defendants to the Fifth Amendment
assertions they made throughout discovery and instruct
the jury that it may draw an adverse inference from
their assertions;
(2) permit Plaintiffs to call defendants to the
stand at trial to re-assert the Fifth Amendment;
(3) bar Defendants from explaining their refusal
to testify for any other reason other than their good
faith belief that truthful answers may tend to
incriminate them; and
(4) bar defense counsel from making improper
arguments about the meaning of Defendants’ assertions
of the Fifth Amendment privilege.
That has evoked different responses from the individual
defendants:

Stephen Del Bosque (“Del Bosque”), Margaret Hopkins

(“Hopkins”) Paul Zogg”) and Donovan Markiewicz (“Markiewicz”)
8

have taken one position, while Keith Herrera (“Herrera”) has
advanced another.
As for all the individual defendants other than Herrera,
they do not seek to back away from their invariant assertions of
a Fifth Amendment privilege against self-incrimination, but they
resist being called to the stand so that the jury can be apprised
of the adverse inferences from such assertions that have been
available in civil cases ever since Baxter v. Palmigiano, 425
U.S. 308, 318 (1976).

This Court sees no reason that plaintiffs

should not be entitled to the relief they seek, and so P.
Motion 7 (Dkt. 615) is granted as to those defendants.
Defendant Herrera has taken a different tack (the other
defendants have listed him as a trial witness, and he now seeks
to back away from his long-asserted invocation of the Fifth
Amendment to allow him to testify at trial as a substantive
matter).

This Court rejects Herrera’s position as both belatedly

asserted and fundamentally unfair:

All of the discovery, and all

of plaintiffs’ strategic planning, in this case during its sevenyear history3 have been predicated on the unbroken scenario in
which defendants’ exercise of the Fifth Amendment privilege has
been an integral part.

And with the case now ready for setting a

trial date once the current motions in limine have been dealtwith

3

As might be guessed, this action is the oldest active
case on this Court’s calendar by a goodly margin.
9

in this opinion, any notion of a further longitudinal extension
is unacceptable.
In summary, then, P. Motion 7 is granted in its entirety.
Neither Herrera nor any of the other individual defendants may
back away from their long-asserted reliance on the Fifth
Amendment, and plaintiffs are entitled to call them to the stand
at trial in reliance on their required reassertion of their Fifth
Amendment positions.

This order extends as well to the other

components of P. Motion 7 as quoted at the outset of this section
of the opinion.
P. Motion 8 (Dkt. 616) seeks “to bar improper use of police
resources to run background checks on potential jurors.”

That is

the other side of the same coin presented by D. Motion 10, which
seeks “to allow criminal background checks on potential jurors
during voir dire.”

Hence this opinion will address both of those

counter-motions together.
In part plaintiffs urge that such police databases “are
restricted to law enforcement purposes only,” citing
administrative regulations and an Illinois criminal statute.

And

plaintiffs then go on to urge that “the City’s method of using
this information is unfairly one-sided and can cause
complications following the empaneling of the jury,” citing a
June 30, 2011 ruling by this Court’s colleague Judge Amy St. Eve

10

in Hill v. City of Chicago, 06 C 6772, that granted a like motion
by a plaintiff’s counsel there.
In response (and in support of their own D. Motion 10),
defense counsel offer to handle the process on an even-handed
basis by sharing any results of the investigation simultaneously
with plaintiffs’ counsel and this Court.

That does not

necessarily appear wholly unpalatable to plaintiffs’ counsel (see
P. Motion 8 at 2-3).

But matters are made more complicated by

this Court’s method of jury selection, which does not employ the
“struck jury” procedure and accordingly discloses the identity of
prospective jurors only as they are successively seated in the
jury box during the actual voir dire selection process.
In summary, this issue is one that can best be addressed in
the context of the actual trial.

In the meantime P. Motion 8

(Dkt. 616), which it will be remembered opposes only the
“improper use of police resources,” is granted in those terms,
while D. Motion 10 (Dkt. 640) is continued until the time of
trial because it requires further discussion, which will be held
at the customary voir dire conference that this Court convenes
shortly before trial.
P. Motion 9 (Dkt. 620) seeks to preclude defendants “from
introducing any evidence or making any reference to their
personal financial status.”

That motion was the one that led to

the severability of treatment between the Opinion and this

11

opinion, because defendants Del Bosque and Zogg had sought and
were granted an extension of time within which to respond.

At

the same time Hopkins and Markiewicz had timely filed a statement
that they “do not intend to introduce any evidence or make any
reference to their respective financial statuses at trial,” while
Herrera opposed that motion as an adjunct to his here-rejected
effort to testify substantively at trial.

Since then Del Bosque

and Zogg have joined Hopkins and Markiewicz in disclaiming any
intention to offer such evidence, so that Herrera stands alone in
his opposition.
What this opinion said earlier in rejecting Herrera’s effort
to reverse fields applies here with even greater force.

Any

asserted inability of a plaintiff to claim punitive damages is a
classic affirmative defense (see Taylor v. City of Chicago, 09 C
5092, 2012 WL 3686642 at *3 (N.D. Ill. Aug. 24), relying on
Kemazy v. Peters, 79 F.3d 33, 36 (7th Cir. 1996) and Carter v.
United States, 333 F.3d 791, 796 (7th Cir. 2003))--and Herrera
has not only failed to advance such an affirmative defense but
has also failed to produce any evidence of his financial
situation during discovery.

It is too late in the day for

Herrera to switch signals--and moreover, his attempted total
stonewalling on financial information by wrapping his
nonresponses in a Fifth Amendment mantle might have been
problematic as well.

12

In summary, Herrera’s objection is not well taken, and the
other defendants have offered no opposition.

P. Motion 9 (Dkt.

620) is granted in its entirety.
P. Motion 10 (Dkt. 617) seeks “to bar any argument that
appeals to the jurors’ pecuniary interests as taxpayers,” to
which all defendants have responded that they “do not intend to
make any improper arguments regarding taxpayer dollars or other
budgetary issues.”

Although defense counsel couple that

disclaimer with a statement that the motion “is unnecessary” and
they consequently ask for denial of that motion, the more
appropriate treatment is rather to grant P. Motion 10 as having
been unopposed, and this Court so orders.
P. Motion 11 (Dkt. 618) asks that defendants be prohibited
“from presenting any evidence, reference or argument relating to
Noel Padilla’s alleged past gang affiliation.”

Once again

defendants state that they “do not indent [sic] to affirmatively
use evidence of Noel Padilla’s gang affiliation to unfairly
prejudice the jury against them, nor do defendants intend to make
improper arguments”--but once again defendants hedge that
disclaimer by attempting to draw upon their all-purpose (from
their perspective) use of the opinion in the Cobige case.

Both

this Court (see Ramirez v. City of Chicago, 05 C 317, 2009 WL
3852378 at *2 (N.D. Ill. Nov. 17) and many of its colleagues have
taken a dim view of such evidence because it poses such a serious

13

risk of unfair prejudice--as, more importantly, our Court of
Appeals has held on more than one occasion (see, e.g., United
States v. Irvin, 87 F.3d 860, 865-66 (7th Cir. 1996) and United
States v. Sargent, 98 F.3d 325, 328 (7th Cir. 1996)).
Moreover, defense counsel’s reference to Noel’s “open[ing]
the door to such evidence by putting his character into issue” is
the kind of boilerplate misrepresentation that does counsel no
credit--as P. Motion 11 at 1-2 states:
Mr. Padilla is not an affiliate of a gang and was not
in a gang at the time of his arrest. A Chicago Police
Department arrest report from early 1998 (more than 15
years ago) alleges that Mr. Padilla was a member of a
gang. This report, which plaintiff disputes, has no
relevance in this trial.
Even apart from the strong judicial language in Irvin and other
cases, no good faith predicate has been advanced for defense
counsel’s attempted hedge by again citing Cobige, whose holding
is totally inapplicable to this issue.

Hence P. Motion 11 (Dkt.

618) is also flat-out granted.
P. Motion 12 (Dkt. 619) seeks to bar relitigation of matters
decided against defendants in this Court’s summary judgment
decision as to liability.

More specifically, the motion requests

that this Court:
(1) instruct the jury on which claims Defendants’
liability has already been established as a matter of
law,
(2) issue an order deeming undisputed facts
established at summary judgment as stipulated for trial
and binding upon the parties, and
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(3) bar Defendants from disclaiming their
established liability at trial.
Defendants respond that they “have no quarrel with that request,”
and they go on with a reciprocal assertion “that Plaintiffs are
equally bound to this Court’s finding on summary judgment,
precluding them from relitigating those issues as well.”
To implement P. Motion 12, plaintiffs’ counsel has attached
a series of proposed stipulations embodied in its “Exhibit A:
Facts Not Genuinely in Dispute.”

Defendants’ response has

interposed no objection to the first 28 paragraphs tendered there
by plaintiffs’ counsel, but they interpose objections to the
other 15 paragraphs in Ex. A, paragraphs that deal (1) with
defendants’ guilty pleas to charges of conduct that shares
attributes present in what has been established in this case and
also (2) with the numbers of other complaints of police
misconduct that have been lodged against each of the individual
defendants.
As for defendants’ criminal convictions, P. Motion 13
(Dkt. 627) musters powerful arguments that such evidence (1) is
relevant (and highly probative) to prove plaintiffs’
participation in a conspiracy and also (2) bears directly on the
potential for imposition of punitive damages against defendants.
All of that argument, together with the supporting caselaw
proffered by P. Motion 13, persuasively negates the excludability
of such evidence under Rule 404(b).
15

As for the evidence of other

complaints of police misconduct launched against defendants, that
subject will be dealt with later in connection with D. Motion 2.
In summary, P. Motion 12 (Dkt. 619) is granted, subject to
the possible limitation as to the limited portion of its Ex. A
addressed later in this opinion.

For purposes of the Conclusion

section at the end of this opinion, however, the motion will be
treated as having been granted.
P. Motion 13 (Dkt. 627) has already been referred to in part
in the just-completed portion of this opinion.

Here is how

plaintiffs’ counsel summarizes the relief sought in that motion:
Plaintiffs, through counsel, respectfully move in
limine to admit: (1) evidence of Defendant Officers’
conspiracy to target vulnerable individuals for false
arrest, illegal searches, and robbery, and (2) evidence
that Defendants acted with impunity in their abuse of
Mr. Padilla and his family. Specifically, Plaintiffs
seek to admit evidence of: (a) Defendants’ related
criminal convictions, admissions, and guilty pleas
describing their conspiracy; (b) the testimony of
Miguel Melesio; and (c) Defendants’ knowledge that they
would not be punished for abusing Plaintiffs, including
the testimony of Dr. Steven Whitman.
Plaintiffs’ counsel have clearly struck a nerve, for here is the
“Introduction” with which defendants’ counsel begin their
response:
The mere fact that Plaintiffs filed this affirmative
Motion in Limine to admit evidence implicitly
acknowledges their recognition that such evidence is
irrelevant and unfairly prejudicial. Having spent
years developing this evidence, Plaintiffs cannot so
easily abandon it now that they have prevailed on
almost all of the issues of liability and are faced
with what is essentially a simple ten-minute unlawful
search claim and a damages trial. Extensive evidence
16

relating to Defendants’ criminal convictions to prove
conspiracy here on a search claim, where the only
disputed fact will be consent, is both unnecessary and
unfairly prejudicial.
“Prejudicial”?

Of course--and properly so, for all relevant

evidence is by its nature prejudicial to the party against whom
it is offered, else it would not be admissible.
prejudicial”?

But “unfairly

Not so, with the potential exception addressed

next.
P. Motion 13 at 10 states that plaintiffs have eliminated 9
of 10 other victim-witnesses of defendants’ conspiracy who had
been listed at may-call witnesses in the original proposed final
pretrial order.

That remaining witness, Miguel Melesio

(“Melesio”), is assertedly proffered “to testify about
defendants’ similar abuse of him pursuant to defendants’
conspiracy.”
At the risk of being simplistic in a case that can scarcely
be characterized in that fashion, this Court is uncertain as to
the need for, or appropriateness of, the Melesio testimony.
Given the fact that the evidence of defendants’ guilty pleas and
convictions will be before the jury (evidence that this Court
understands to have stemmed from defendants’ unconstitutional
conduct involving Melesio and his family), it would seem that the
jury in this case will be adequately apprised on the issues for
which Melesio’s testimony is sought to be elicited.

17

If this

Court is mistaken in its understanding of the underlying facts in
that respect, that can be raised by a follow-up motion.
Hence P. Motion 13 (Dkt. 627) is granted in principal part,
excluding only its request for admission of Melesio’s testimony.
This motion’s grant includes the testimony of

Dr. Steven

Whitman, which will be taken up hereafter in conjunction with one
of defendants’ not-previously-addressed motions.
That then completes (at long last) the discussion of
plaintiffs’ motions.

This opinions turns then to the tag ends of

defendants’ panoply of motions.
D. Motion 2 (Dkt. 632) seeks to bar the testimony of Dr.
Steven Whitman, an opinion witness retained by plaintiffs to
perform a statistical analysis of CR files.

As defendants would

have it, the Whitman testimony is out of the case because Monell
liability has been removed from jury determination as a result of
(1) this Court’s summary judgment determination and (2) the
elimination of the need for Monell-type proof.
It is certainly true that the bulk of Dr. Whitman’s report
and analysis is no longer at issue.

But plaintiffs’ response

makes clear that their now-proposed focus is far more narrow:
Plaintiffs seek only to present Dr. Whitman’s findings
that the probability was less than one in a thousand
that the Defendants and their SOS teammates would be
disciplined in response to a civilian complaint of
false arrest, illegal search, robbery, theft, or
extortion--Defendants’ precise misconduct perpetrated
in this case. Dr. Whitman’s findings, coupled with the
Defendants’ Fifth Amendment assertions, are powerful
18

evidence from which the jury may infer Defendants’
knowledge of their impunity.
Defense counsel attempt to seize on the phrase “knowledge of
their impunity” to urge that in their view such evidence does not
bear on the issue of punitive damages, quoting from Seventh
Circuit Pattern Instruction 7.2.

That position, however, is

myopic, for “the reprehensibility of the Defendants’ conduct” is
one of the factors expressly mentioned in the Pattern
Instruction, a concept that surely permits consideration of
egregious wrongdoing that is engaged in with knowledge that the
chance of being caught and punished is at or near the vanishing
point.
Accordingly this Court accepts plaintiffs’ drastic
curtailment of the originally-proposed Whitman testimony.

And in

those terms, D. Motion 2 (Dkt. 632) is denied.
Next D. Motion 3 (Dkt. 633) seeks to bar evidence of
defendants’ criminal convictions.

That position has already been

rejected in this opinion’s discussion of P. Motion 13, and so D.
Motion 3 is also denied.
And finally D. Motion 7 (Dkt. 637) asks that plaintiffs be
precluded from calling defendants other than Herrera (whose
motion to the same effect has already been rejected) to the
stand, where each defendant will be required to invoke his or her
Fifth Amendment privilege.

That contention has already been

addressed and rejected in this opinion’s discussion of P. Motion
19

7 (the two 7s are a sheer coincidence in numbering), and so D.
Motion 7 (Dkt. 637) is denied as well.
Conclusion
Defendants have continued their losing ways from the
earlier-decided adverse summary judgment as to liability through
the current motions-in-limine stage.

Here is the scorecard as to

the battery of cross-motions that have remained for consideration
after this Court’s issuance of the October 2, 2013 Opinion:
1.

P. Motions 1 (Dkt. 609), 2 (Dkt. 610), 7 (Dkt.

615), 8 (Dkt. 616), 9 (Dkt. 620), 10 (Dkt. 617) and 11 (Dkt.
618), are granted in their entirety, while P. Motion 12
(Dkt. 619) is granted except for a possible partial
limitation.
2.

P. Motions 3 (Dkt. 611), 4 (Dkt. 612) and 5 (Dkt.

613) are also granted, subject to the possibility that one
or more may be revisited at trial.
3.

P. Motion 6 (Dkt. 614) is granted in principal

part, while perhaps being subject to denial as to some
lesser part later.
4.

P. Motion 8 (Dkt. 616) is granted as framed by

plaintiff.
5.

P. Motion 13 (Dkt. 627) is granted in principal

part, excluding only its request for admission of the
Melesio testimony.

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6.

D. Motion 2 (Dkt. 632), 3 (Dkt. 633) and

7 (Dkt.

637 are all denied.
7.

D. Motion 10 (Dkt. 640) is continued for further

consideration at the time of trial.4
Lastly, a status hearing is set for December 9, 2013 at 9:30 a.m.
to discuss the arrangements for trial of the case.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date: December 3, 2013

4

This Court’s review of the case docket reveals a few
September 12, 2013 docket entries that should be cleaned up in
the interest of orderliness. Those comprise Dkt. 630, a motion
by plaintiff to stay a portion of their own claims, and Dkt. 624
and 626, both seeking leave to file oversized motions. All three
of those motions are of course granted.
21