Casares v. Bernal et al

Filing 250

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 5/20/2011. (aac, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANIEL CASARES and KARINA
CASARES,
Plaintiffs,
v.
OFFICER BERNAL, et al.,
Defendants.

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08 CV 4198

Magistrate Judge Young B. Kim

May 20, 2011

MEMORANDUM OPINION and ORDER
Plaintiffs Daniel and Karina Casares bring this civil rights action under 42 U.S.C.
§ 1983, claiming that the seven defendant police officers violated their constitutional rights
by using excessive force against them in the course of an arrest that took place on October
6, 2006. According to Plaintiffs, Defendants dragged Daniel—who has been a quadriplegic
since 2002 and has limited use of his arms and hands—out of a car where he was sitting and
hit and kicked him repeatedly. (R. 51, Second Am. Compl. ¶¶ 7-8.) They also hit and kicked
Karina repeatedly when she yelled at them to stop beating Daniel. (Id. at ¶¶ 9-10.) According
to Defendants, they used only reasonable force in arresting Daniel for striking a police officer
in the face and Karina for interfering with Daniel’s arrest. The parties have consented to the
jurisdiction of this court. See 28 U.S.C. § 636(c). Currently before the court are Plaintiffs’
motions in limine numbers 5, 19, 22, 24, and 26, and Defendants’ motions in limine numbers
12, 18, 19, 20, 21, and 23. For the following reasons, the motions are granted in part and
denied in part as follows: Plaintiffs’ motion in limine number 5 is granted; Plaintiffs’ motion

in limine number 19 is granted in part and denied in part; Plaintiffs’ motions in limine
numbers 22, 24, and 26 are denied; Defendants’ motions in limine numbers 12 and 19 are
denied; Defendants’ motion in limine number 18 is granted; and Defendants’ motions in
limine numbers 20, 21, and 23 are granted in part and denied in part.
Legal Standard
Included in the district court’s inherent authority to manage trials is the broad
discretion to rule on motions in limine. Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664
(7th Cir. 2002). The purpose of a motion in limine is to prevent the jury from hearing
evidence that is “clearly inadmissible on all possible grounds.” Anglin v. Sears, Roebuck &
Co., 139 F.Supp.2d 914, 917 (N.D. Ill. 2001). Accordingly, in some instances it is best to
defer rulings until trial, where decisions can be better informed by the context, foundation,
and relevance of the contested evidence within the framework of the trial as a whole. Id.
“A pre-trial ruling denying a motion in limine does not automatically mean that all evidence
contested in the motion will be admitted at trial.” Delgado v. Mak, No. 06 CV 3757, 2008
WL 4367458, at *1 (N.D. Ill. March 31, 2008). And although a ruling granting a motion in
limine excludes the introduction of certain evidence, the court may revisit evidentiary rulings
during trial as appropriate in its exercise of discretion. Luce v. United States, 469 U.S. 38,
41-42 (1984).

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Analysis
I.

Defendants’ Motions in Limine
A.

No. 12, To Bar Lay Opinions on Plaintiff Daniel Casares’s Medical
Condition or What He Is Capable of Doing

Defendants seek to prevent Karina and other lay witnesses from testifying as to the
kinds of movements Daniel is capable of making or giving their opinions regarding what
kind of force would be necessary to arrest Daniel. Federal Rule of Evidence 701 states that
lay witnesses are permitted to give opinions which are “(a) rationally based on the perception
of the witness; (b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or other specialized
knowledge.” In other words, “[l]ay opinion testimony is admissible only to help the jury or
the court to understand the facts about which the witness is testifying and not to provide
specialized explanations or interpretations that an untrained layman could not make if
perceiving the same acts or events.” United States v. Conn, 297 F.3d 548, 554 (7th Cir.
2002) (quoting United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001)).
Defendants’ request to exclude lay opinions sweeps too broadly. Under Rule 701,
Karina and other witnesses who know Daniel will be allowed to describe their first-hand
perceptions of Daniel’s physical condition, as long as their testimony does not conflict with
his criminal conviction for battery, as explained below in part I-D. To the extent that their
testimony strays into the realm of specialized or technical interpretations of Daniel’s
movements or legal conclusions regarding the level of force necessary to arrest him, the
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admissibility of those statements will be dealt with best at trial, where objections can be
presented in context. See Hawthorne Partners v. AT&T Techs., Inc., 831 F.Supp. 1398, 1401
(N.D. Ill. 1993). Defendants’ motion in limine number 12 is denied.
B.

No. 18, To Bar Evidence or Testimony Relating to a Sustained Complaint
Register 1

Defendants move to prevent Plaintiffs from submitting evidence regarding a sustained
complaint register (“CR”) lodged against one of the defendant officers (“the accused
officer”), in which he/she was accused of: (1) grabbing an arrestee, choking him, and
slamming him to the ground outside the police station; (2) pushing the arrestee inside the
station and causing his head to slam against the wall; and (3) providing false information
regarding the arrest in case reports and in the Office of Professional Standards’ (“OPS”)
subsequent investigation. The OPS investigator sustained allegations that the accused officer
choked, pushed, and slammed the arrestee to the ground, provided false information in the
arrest and case reports, and gave a false statement to OPS during the investigation by stating
that his/her use of force was in response to the arrestee’s resistance. The accused officer was
suspended for 30 days as a result of the sustained allegations. According to Defendants, any
allusions to this incident represent inadmissible and unduly prejudicial propensity evidence.

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Because there is a protective order in place in this case, Defendants filed redacted
versions of motions in limine numbers 18 and 19 with the clerk’s office and provided the
court with unredacted versions. The court has made every effort to ensure that this opinion
does not include any confidential information. The parties should contact the court
immediately if the opinion conveys any information that is subject to the protective order.
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Under Federal Rule of Evidence 404(b), “[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action in conformity
therewith.” It may be admissible, however, to show motive, opportunity, intent, plan,
knowledge, identity, or absence of mistake. Id. To determine admissibility under Rule
404(b), the court must consider whether: “(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propensity to commit the crime charged, (2) the
evidence shows that the other act is similar enough and close enough in time to be relevant
to the matter in issue, (3) the evidence is sufficient to support a jury finding that the
defendant committed the similar act, and (4) the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice.” United States v. Hicks, 635 F.3d
1063, 1069 (7th Cir. 2011). A trial judge is not required to permit a plaintiff in an excessive
force case to introduce a defendant officer’s prior disciplinary history. Okai v. Verfuth, 275
F.3d 606, 611 (7th Cir. 2001).
Here, Plaintiffs assert that they seek to introduce evidence regarding the sustained CR
not to show the accused officer’s propensity for violence or untruthfulness, but to show
“intent, plan, absence of mistake, training in and knowledge of proper police procedures, and
trustworthiness.” (R. 224, Pls.’ Resp. at 3.) More specifically, they argue that it is
“admissible to show that [the accused officer] intended to use unreasonable force on Plaintiff
Karina Casares and that the degree of force [he/she] used was not accidental or a mistake,”
and that the accused officer’s acts in “falsifying [his/her] factual account as to [his/her]

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battery and assault of the complainant, keenly demonstrates [his/her] state of mind, i.e.,
[his/her] knowledge and intent to injure, as well as [his/her] need to justify the unreasonable
and disproportionate beating of Plaintiffs.” (Id. at 4-5.) Plaintiffs’ point is well-taken with
respect to their argument that the accused officer’s shifting explanations of the conduct
underlying the CR is relevant to show his/her alleged knowledge and intent to justify his/her
use of force after-the-fact. But their argument that the previous use of force demonstrates
the accused officer’s intent to use excessive force against Daniel is more problematic. This
court recognizes that there have been excessive force cases in this district in which the court
allowed evidence of an officer’s prior use of excessive force to come in to demonstrate the
officer’s “intent to commit assault and battery in the case at bar.” See Edwards v. Thomas,
31 F.Supp.2d 1069, 1074 (N.D. Ill. 1999); see also Finley v. Lindsay, No. 97 CV 7634, 1999
WL 608706, at *3 (N.D. Ill. Aug. 5, 1999). But as Defendants point out, whether the
accused officer subjectively intended to use excessive force or to hurt Karina is not relevant
to the excessive force analysis, which asks “whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). That is
because “[a]n officer’s evil intentions will not make a Fourth Amendment violation out of
an objectively reasonable use of force; nor will an officer’s good intentions make an
objectively unreasonable use of force constitutional.” Id. Under the Graham explanation
of the excessive force inquiry, this court believes that the CR is not admissible to show that

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the accused officer intended to use excessive force against Karina, but may be admissible to
show his/her knowledge of his/her need to excuse his use of force.
Most motions seeking to introduce prior disciplinary records seem to live or die with
the second prong, compare, e.g., Akbar v. City of Chicago, 06 CV 3685, 2009 WL 3335364,
at *2 (N.D. Ill. Oct. 14, 2009), with Petrovic v. City of Chicago, No. 06 CV 6111, 2008 WL
818309, at *3 (N.D. Ill. March 21, 2008), which requires the court to analyze whether the
prior act is “of recent vintage and sufficiently similar to be relevant to the matter in issue,”
Okai, 275 F.3d at 610. Here, the incident underlying the sustained CR and the accused
officer’s actions in justifying his/her use of force against Karina are sufficiently close in time.
The incident underlying the sustained CR took place only 20 months before the Casares
incident, and the investigation was completed only five months before. See United States v.
Torres, 977 F.2d 321, 327 (7th Cir. 1992) (noting that 20-month period between incidents
meets the temporal requirement of Rule 404(b)). But Plaintiffs’ explanation of the accused
officer’s shifting explanations in this case are insufficiently similar in nature to his/her false
statements made in connection with the sustained CR. In the prior incident, the accused
officer completely omitted any reference to his/her use of force from his/her initial report and
only amended his/her report to describe the force used after it had been approved by his/her
supervisor. Here, the accused officer acknowledged that he/she used force against Karina
from the get-go. And none of the supposed inconsistencies to which Plaintiffs point establish
the requisite similarity between his/her prior dishonesty and what happened here. For

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example, they emphasize that the accused officer approved an arrest report stating that
Karina had shoved and hit him/her in the chest before he/she subdued her, but then signed
a tactical response report that says Karina failed to follow verbal commands, stiffened, and
pulled away. But the tactical report simply provides space for an officer to check boxes to
describe the arrestee’s conduct, and the fact that the language on the form does not line up
precisely with the accused officer’s first-hand description of Karina’s actions hardly
demonstrates that he/she attempted here, as in the previous incident, to hide his/her use of
force from his/her supervisor. Plaintiffs also point to the fact that the tactical report states
that the accused officer performed a take-down of Karina, but at a subsequent tow hearing,
the accused officer testified that he/she did not even watch the take-down. (R. 224, Ex. B,
Tr. at 19.) That is certainly a matter about which the Plaintiffs will be permitted to crossexamine the accused officer, but it is not sufficiently similar to the conduct underlying the
sustained CR to meet the second prong of the 404(b) analysis.
Similarly, and in the interest of completeness, the court notes that even the accused
officer’s use of force in the prior and current incidents are different enough to prevent them
from clearing the second prong’s hurdle. In the prior incident, the accused officer was found
to have mistreated a male arrestee by choking him and throwing him to the ground while he
was already handcuffed. (R. 212, Ex. A.) Here, the accused officer allegedly took Karina to
the ground as she was moving toward him/her, and used the take-down to accomplish the
task of handcuffing her. Because there are no obvious commonalities among these two

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instances of force, the aspect of the CR pertaining to the force findings are inadmissible
under prong two as well.
Turning to prongs three and four, because the CR was sustained, a jury could find that
the accused officer committed the prior act. Hicks, 635 F.3d at 1069. But given the limited
probative value of the sustained CR for the substantive purpose of demonstrating the
officers’ intent, here the Rule 403 analysis that is incorporated into prong four falls in favor
of Defendants. The danger that the jury will draw improper propensity conclusions from the
sustained CR is high, see Donald v. Rast, 927 F.2d 379, 381 (8th Cir. 1991), as is the danger
that introducing this evidence will result in a distracting mini-trial within the trial.
Accordingly, Defendants’ motion in limine number 18 is granted with respect to direct
evidence regarding the sustained CR.
C.

No. 19, To Bar Plaintiffs From Cross-Examining a Defendant Officer
Regarding the Events Underlying the Sustained Complaint Register

Defendants argue that Plaintiffs should be barred from cross-examining the accused
officer regarding the incident underlying the sustained CR because, according to them, the
potential prejudice to the accused officer outweighs its probative value with respect to his/her
character for truthfulness. Federal Rule of Evidence 608(b) states that specific instances of
a witness’s conduct may, “if probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness (1) concerning the witness’ character for truthfulness or
untruthfulness or (2) concerning the character for truthfulness or untruthfulness of another
witness as to which character the witness being cross-examined has testified.” Whether to
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allow past instances of misconduct “to be used to challenge a witness’s reputation for
truthfulness is committed to the discretion of the district judge.” United States v. Seymour,
472 F.3d 969, 971 (7th Cir. 2007). Defendants argue that allowing Plaintiffs to crossexamine the accused officer with respect to the sustained finding that he/she made false
statements on a police report would be more likely to cause the jury to conclude that the
accused officer has a propensity to use force than to shed any light on his/her truthfulness.
They also argue that Karina and the accused officer gave similar accounts of his/her use of
force against her, so that there is no real need to assess the accused officer’s credibility with
respect to his/her account of his/her use of force.
The court agrees with Plaintiffs that the accused officer’s sustained CR is probative
of his/her truthfulness, and that this probative value—as distinct from its minimal value in
demonstrating any of the Rule 404(b) exceptions—outweighs the potential that the jury will
use this information to brand the accused officer as a violent police officer. The accused
officer was specifically found to have provided false information by saying that he/she used
force in response to the arrestee’s attempt to resist arrest, when in reality the arrestee in the
other incident had not been resisting. Here, the accused officer is likely to testify that he/she
used the take-down and a certain level of force in response to Karina’s obstruction of
Daniel’s arrest. The fact that he/she has been untruthful in the past regarding the reasons for
his/her use of force is probative of his/her truthfulness in this case. See Richman v.
Burgeson, No. 98 CV 7350, 2008 WL 2567132, at *7 (N.D. Ill. June 24, 2008). And because

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the accused officer’s version of the events is likely to diverge materially from Plaintiffs’,
his/her credibility is likely to be in issue. See Seymour, 472 F.3d at 971. Accordingly,
Defendants’ motion in limine number 19 is denied. But the court notes that Plaintiffs have
not explained why it would be appropriate to call seven officers, as they have stated they plan
to do, to lay the foundation for the sustained CR if it is only to be used as a cross-examination
tool to shed light on the accused officer’s truthfulness. Plaintiffs should be prepared to
explain this or submit a revised witness list at the final pretrial conference.
D.

No. 20, To Bar Plaintiffs From Basing their Excessive Force Claims on
Certain Facts and Offering Testimony Inconsistent with Plaintiffs’
Criminal Convictions

Defendants seek to prevent Daniel and Karina Casares from presenting evidence at
trial that is inconsistent with their criminal convictions which resulted from the altercation
underlying Plaintiffs’ claims. As a result of the Casareses’ run-in with Defendants on
October 6, 2006, Daniel Casares was charged with one count of battery to a police officer,
720 ILCS 5/12-3(a)(1), and two counts of resisting or obstructing a police officer, 720 ILCS
5/31-1. (R. 203, Exs. A & B.) The battery complaint charged Daniel with striking defendant
officer Bernal “in the face with his fist, causing swelling and redness to P.O. Bernal’s face.”
(Id. Ex. A.) Karina Casares was charged with resisting/obstructing arrest by failing “to obey
a lawful order of dispersal by a person known to her to be a police officer, under such
circumstances whereas she became loud and disruptive in an attempt to interrupt the police
officer’s investigation into narcotics activities.” (Id. Ex. C.)

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Following a bench trial, the presiding judge found Daniel guilty of the battery charge
and of one of the resisting arrest charges, and found Karina guilty of obstructing a police
officer. (Id. Ex. D.) In the course of his ruling, the trial judge found that:
Mr. Casares was trying to defeat this arrest by unlocking and locking the doors
of the car. I also believe that he struck Officer Bernal in the face. And I
believe it was intentional. . . . As I watched Mr. Casares testify, I watched him
lift up his arm with his fist closed in a matter [sic], moving his left arm up. I
watched him do it right in front of me before this bench, so I believe it’s
possible he did it. I believe he did it.
(Id., Tr. at 160.) As to Karina, the judge found that she “sat on the hood of the car while the
police are in the middle of a police investigation . . . [and] felt incumbent upon herself to
interrupt their investigation which she had no right to do.” (Id., Tr. at 161.)
The Casareses moved for reconsideration of their convictions. The trial judge held
a hearing, during which the Casareses’ attorney argued that Daniel’s quadriplegia renders
him physically incapable of unlocking or locking the car doors or punching a police officer
as charged. The trial judge reversed his ruling only with respect to Daniel’s conviction for
resisting arrest, because the complaint charged him with resisting arrest in relation to an
officer who was not involved in the aspect of the incident in which Daniel was accused of
locking and unlocking his car doors to prevent his arrest. The judge declined to reconsider
the battery conviction, stating that:
Defense counsel argued that it was a[n] [in]voluntary muscle twitch that
caused Daniel to strike Officer Bernal. I don’t believe that. As I observed
during the trial during his testimony, Mr. Casares’ testimony, he was able to
easily move his arm. I believe it was an intentional battery.

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(Id. Ex. E, Tr. at 12.) The judge also declined to reconsider Karina’s obstruction conviction,
finding that she tried to prevent the officers from arresting Daniel or impounding the car
when she “sat on the hood of the car,” “flailed her arms,” and “was combative” with the
officers. (Id. at 12-13.)
In the current motion, Defendants argue that based on Illinois principles of collateral
estoppel and the rule set forth in Heck v. Humphrey, 512 U.S. 477, 485-86 (1994),
prohibiting plaintiffs from pursuing civil claims where a judgment in their favor “would
necessarily imply the invalidity of [their] conviction[s],” Plaintiffs should not be allowed to
present evidence at trial that conflicts with the findings underlying their criminal convictions.
Specifically, they argue that Plaintiffs should not be allowed to present evidence that Daniel
is incapable of making a fist or hitting someone with enough force to cause redness and
swelling, or that his contact with Officer Bernal was the result of an involuntary muscle
spasm. Defendants also argue that Daniel should not be allowed to challenge whether he is
physically able to lock and unlock a car door. They also argue that Plaintiffs should not be
allowed to present evidence that Karina did not physically interfere with the officers.
Defendants reach a little too far with respect to their collateral estoppel arguments.
Here, Illinois law determines the collateral estoppel effect of the Casares’s state convictions
on their current section 1983 claims. See Toro v. P.O. R. Gainer, 370 F.Supp.2d 736, 739
(N.D. Ill. 2005). In Illinois the doctrine of collateral estoppel applies where “(1) the issue
decided in the prior adjudication is identical with the one presented in the suit in question;

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(2) there was a final judgment on the merits in the prior adjudication; and (3) the party
against whom the estoppel is asserted was a party to or in privity with a party to the prior
adjudication.” Bajwa v. Metropolitan Life Ins. Co., 804 N.E.2d 519, 532 (Ill. 2004). But as
Plaintiffs point out, the Seventh Circuit has made clear that collateral estoppel does not apply
to factual findings made in a criminal proceeding where the person against whom estoppel
is to be applied did not have a chance to appeal from the decision incorporating those
findings. See Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1021-23 (7th Cir. 2006).
In particular, where a person has been acquitted of the charges connected to the challenged
factual findings, “it would be improper to give collateral estoppel effect to the pretrial
ruling.” Toro, 370 F.Supp.2d at 741. Accordingly, Defendants’ motion is denied with
respect to evidence which conflicts with factual findings the state judge made in connection
with Daniel’s obstruction charge. Specifically, the judge’s findings that Daniel “was trying
to defeat this arrest by unlocking and locking the doors of the car,” (R. 203, Ex. D, Tr. at
160), or by “trying to continually lock the car doors,” (Id. Ex. E, Tr. at 12), have no
preclusive effect.
But Defendants’ motion is granted with respect to evidence which conflicts with the
specific factual findings the state judge made in connection with Daniel’s battery conviction
and Karina’s obstruction conviction. In arguing that Daniel’s battery conviction has no
preclusive effect, Plaintiffs assert that the battery conviction did not depend on the judge’s
findings regarding Daniel’s capabilities, and that even if it did, the judge did not specifically

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find that Daniel is capable of making a fist or that he intentionally did so. But as noted
above, the battery complaint charged Daniel with striking defendant officer Bernal “in the
face with his fist, causing swelling and redness to P.O. Bernal’s face.” (R. 203 Ex. A.) The
Illinois statute under which Daniel was charged requires a finding that the charged party
“knowingly” causes bodily harm. 720 ILCS 5/12-3(a)(1). Thus Daniel’s conviction resolved
the question of whether Daniel’s contact with Officer Bernal was involuntary against
Daniel’s version. The conviction also resolves against Daniel the question of whether he has
the physical strength to cause swelling and redness. Moreover, the state judge’s other factual
findings were not as vague as Plaintiffs assert. The judge found that “it was intentional. . .
As I watched Mr. Casares testify, I watched him lift up his arm with his fist closed in a matter
[sic], moving his left arm up. I watched him do it right in front of me before this bench, so
I believe it’s possible he did it. I believe he did it.” (R. 203, Ex. D, Tr. at 160.) Daniel had
the opportunity to challenge these findings through his criminal appeal. Thus collateral
estoppel precludes Plaintiffs from offering evidence that Daniel is incapable of making a fist,
that he struck Officer Bernal involuntarily, or that he lacks the strength to cause any injury.
The only argument Plaintiffs raise against the collateral estoppel effect of the findings
underlying Karina’s obstruction conviction is their assertion that the state judge’s findings
that she sat on the car and flailed her arms are not broad enough to show that she physically
interfered with the officers. Here the judge’s findings are less specific. He said that Karina
tried to prevent the officers from arresting Daniel or impounding the car when she “sat on

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the hood of the car,” “flailed her arms,” and “was combative” with the officers. (R. 203, Ex.
E, Tr. at 12-13.) Because these findings do not illuminate whether or how Karina physically
interrupted the officers, the motion will be granted in part and denied in part with respect to
these findings. The motion is granted to the extent that Plaintiffs will be prevented from
contesting that Karina sat on the car or flailed her arms, but any objections as to the collateral
estoppel effect of broader characterizations of her conduct are best reserved for trial as the
testimony unfolds.
Even if Plaintiffs had successfully shown that collateral estoppel is no bar to evidence
regarding whether Daniel intentionally made a fist and hit officer Bernal or whether Karina
sat on the car and flailed her arms, Defendants persuasively argue that the Heck bar would
still preclude them from offering certain testimony along these lines. Under Heck, where a
judgment in favor of a plaintiff in a section 1983 action “would necessarily imply the
invalidity of his conviction or sentence,” the action cannot proceed. 512 U.S. at 487; see also
Skinner v. Switzer, 131 S.Ct. 1289, 1298 (2011). The Seventh Circuit has made clear that
Heck does “not affect litigation about what happens after the crime is completed,” including
whether the force police used in response to the underlying crime was reasonable. Gilbert
v. Cook, 512 F.3d 899, 901 (7th Cir. 2008); Vangilder v. Baker, 435 F.3d 689, 692 (7th Cir.
2006). An excessive force claimant who was convicted of having struck the first blow is not
required to confess in open court to throwing the punch, and can proceed with an “argument

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along the lines of ‘The [officers] violated my rights by injuring me, whether or not I struck
first.’” Gilbert, 512 F.3d at 902; see also Evans v. Pokson, 603 F.3d 362, 364 (7th Cir. 2010).
In Gilbert, a prisoner was disciplined for hitting a guard and later brought an
excessive force claim based on his allegations regarding the guards’ response. 512 F.3d at
900. The Seventh Circuit instructed the district court to use jury instructions to implement
Heck, by informing “the jurors that Gilbert struck the first blow during the fracas at the
chuckhole, that any statements to the contrary by Gilbert . . . or a witness must be ignored,
and that what the jurors needed to determine was whether the guards used more force than
was reasonably necessary to protect themselves.” Id. at 902. Consistent with the Seventh
Circuit’s instructions in Gilbert, this court will not require Daniel to confess to the battery
in order to proceed with his claim, but he will not be permitted to introduce evidence contrary
to the state court’s findings that he made a fist and intentionally struck Officer Bernal,
causing redness and swelling. Similarly, Karina will not be permitted to testify that she did
nothing to obstruct the officers while they were attempting to arrest Daniel. For all of these
reasons, Defendants’ motion in limine number 20 is granted in part and denied in part.
E.

No. 21, To Bar Certain Testimony of Plaintiffs’ Expert Richard Lazar,
M.D.

Defendants move to bar the testimony of Plaintiffs’ expert Richard Lazar on the
grounds that his opinions are insufficiently reliable, conflict with the findings underlying
Daniel’s convictions, and pertain in part to matters outside the scope of his expertise.
(R. 204.) In his expert report, Dr. Lazar opines that Daniel did not have the requisite strength
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or flexion to make a fist or the strength to “deliver a blow of sufficient strength to leave
redness and swelling on the face of another person.” (Id. Ex. A at 5.) He further opines that
Daniel did not have the ability to forcibly resist the defendant officers. (Id.) For the reasons
set forth granting Defendants’ Motion in Limine 20 in part, their motion to exclude
Dr. Lazar’s testimony is granted to the extent that he seeks to offer opinions inconsistent with
the findings related to Daniel’s battery conviction. Specifically, he will not be permitted to
testify that Daniel was incapable of making a fist, of intentionally hitting someone, or of
doing so with the strength required to cause redness or swelling.
This court is not persuaded by Defendants’ argument that the remainder of Dr. Lazar’s
testimony should be excluded on the ground that it is insufficiently reliable.

Expert

testimony is admissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 570 (1993), and its progeny if: (1) the witness is “qualified
as an expert by knowledge, skill, experience, training, or education;” (2) the expert’s
“reasoning or methodology underlying the testimony” is sufficiently reliable; and (3) the
testimony is relevant. Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007)
(internal quotations omitted). Defendants object to Dr. Lazar’s testimony only under the
second prong, arguing that his methodology is deficient because he never examined Daniel
or watched the video recording of Daniel’s deposition before giving his opinion regarding
Daniel’s physical abilities. But a physical examination of the patient is not a prerequisite to
an expert’s medical opinion. Walker v. Soo Line R.R. Co., 208 F.3d 581, 591 (7th Cir. 2000).

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Rather, reviewing medical records—as Dr. Lazar did here—is a permissible method for a
medical expert to use to develop an opinion. Id.; Paine ex rel. Eilman v. Johnson, No. 06 CV
3173, 2010 WL 749860, at *3 (N.D. Ill. Feb. 25, 2010). Defendants object in particular to
Dr. Lazar basing his opinion regarding Daniel’s capabilities on his assessment that Daniel
is a C7 quadriplegic, because according to Defendants, Daniel’s video deposition and own
testimony demonstrates that he is capable of doing things that Dr. Lazar identified as lying
outside the capabilities of any C7 quadriplegic. Defendants make strong points that these
potential inconsistencies render Dr. Lazar’s opinion problematic. Defendants will have the
chance to highlight potential inaccuracies by drawing them out through vigorous crossexamination at trial, thus leaving the jury to determine the weight that should be ascribed to
Dr. Lazar’s opinion.
Finally, Defendants argue that Dr. Lazar should be precluded from opining that Daniel
did not have “the ability to be an effective combatant” and “was no match for three able
bodied police officers,” because they argue that these opinions lie outside the scope of his
medical expertise. Although Dr. Lazar will not be permitted to testify regarding police
procedures or what actions a police officer would need to take to subdue Daniel, he will be
permitted to offer his opinion regarding Daniel’s ability to move after the defendant officers
had removed him from the car. To the extent that Dr. Lazar’s testimony strays into the
domain of proper police procedures or responses at trial, Defendants will be allowed to re-

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raise this issue. For these reasons, Defendants’ motion in limine number 21 is granted in part
and denied in part.
F.

No. 23, To Bar Evidence Regarding the Circumstances of Daniel’s Car
Accident

Defendants ask the court to prevent Plaintiffs from eliciting testimony regarding the
details of the 2002 car accident that left Daniel partially paralyzed. They also seek to bar
testimony describing the details of his recovery process. Plaintiffs do not object to the
motion to the extent that it precludes evidence regarding the details of the accident
itself—such as the fact that it was caused by a drunk driver—but they argue that the details
of Daniel’s physical therapy and degree of recovery are highly relevant to the hotly contested
issue of the level of Daniel’s strength and the kinds of movements he was capable of making
on the date of his arrest. According to Defendants, such testimony would be unduly
prejudicial because its main purpose would be to garner sympathy from the jury.
This motion presents objections which are best left for trial, when the court will be
in a better position to weigh the prejudicial effect against the probative value of specific lines
of questioning under Federal Rule of Evidence 403. To grant Defendants’ broad request
before knowing what specific testimony Plaintiffs plan to introduce would risk excluding
information the jury needs to evaluate Daniel’s condition on the day of his arrest. Although
the Defendants’ point is well-taken that Plaintiffs should not be permitted to dwell on
irrelevant details of Daniel’s recovery process, whether and when his testimony crosses a line
from probative to overly prejudicial is a question best resolved in the course of the trial.
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Plaintiffs are warned, however, not to introduce any testimony that may contradict Daniel’s
criminal convictions. Defendants’ motion in limine number 23 thus is granted to the extent
that Plaintiffs do not object to the exclusion of details surrounding Daniel’s accident, but
denied in all other respects.
II.

Plaintiffs’ Motions in Limine
A.

No. 5, Allegations of Drug and/or Alcohol Use by Plaintiffs and/or any
Witnesses

Plaintiffs seek to bar Defendants from introducing evidence of what they describe as
the parties’ or witnesses’ pre-occurrence or post-occurrence drug or alcohol consumption.
Plaintiffs argue that this is inadmissible character evidence under Federal Rule of Evidence
404(b). The court understands Plaintiffs’ motion to be directed to any drug or alcohol use
that occurred on any date other than October 6, 2006, the date of the underlying incident. But
Defendants’ response is directed almost entirely to their argument that they should be
allowed to present evidence that Daniel and two other witnesses used marijuana and/or
alcohol on the day of the incident. That argument is addressed below in part C, where the
court discusses Plaintiffs’ request in motion number 22 to exclude evidence of drug and
alcohol use on the date of the underlying incident. Whether Daniel and the other witnesses
have used illegal drugs or abused alcohol on days other than the date in question carries
almost no probative value and would tend to lead the jury to conclude that they are bad
characters. See United States v. Spano, 421 F.3d 599, 606 (7th Cir. 2005); Cobige v. City of
Chicago, 752 F.Supp.2d 860, 877-78 (N.D. Ill. 2010). Because Defendants have not
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developed any argument to show how pre- or post-occurrence drug and alcohol use falls
within any of the exceptions carved out in Rule 404(b), Plaintiffs’ motion in limine number
5 is granted.
B.

No. 19, Plaintiff’s Alleged Statements in the Ambulance

Defendant Officer Szubski testified in his deposition that while he was accompanying
Daniel to the hospital in an ambulance directly following the incident, Daniel made two
threats. First, he said, “Next time I see your partner I slap her again.” (R. 208, Ex. A.
Szubski Tr. at 113, ln. 1-5.) Second, he said, “I’ll get you, I’ll get my boys and we’ll come
to your house and rape your daughter and make you watch.” (Id.) Plaintiffs seek to have this
court exclude this evidence on the grounds that it is irrelevant, unduly prejudicial, and
constitutes hearsay. Fed. R. Evid. 401-03, 802. Defendants object, arguing that Daniel’s
statements constitute party admissions and therefore should not be excluded as hearsay. They
further argue that Daniel’s statements are relevant to show that he acknowledged hitting
Officer Bernal (an act he later denied having committed), to contradict his assertions that he
lost consciousness and was unaware of his surroundings during the ambulance ride, and to
show his bias against the defendant officers.
Daniel’s

statements

to

Officer

Szubski

in

the

ambulance

are

party

admissions—statements made by and offered against a party—and thus are not excludable
on hearsay grounds. See Fed. R. Evid. 801(d)(2)(A); United States v. Reed, 227 F.3d 763,
769-70 (7th Cir. 2000). They are also relevant for the reasons given by Defendants. Whether

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their probative value substantially outweighs their unfairly prejudicial effect under Rule 403,
however, is a closer call. The court concludes that the balancing weighs in favor of
Defendants.

Although this court’s ruling on Defendants’ motion in limine 20 takes the

question of whether Daniel intentionally hit Officer Bernal off the table, his threat to slap
Officer Bernal “again” counteracts Daniel’s assertion that he lost consciousness or was
unaware of what was happening after his arrest.

That he was sufficiently lucid to

acknowledge what he had done and to threaten to do it again is evidence the jury can use to
determine his credibility on that point and to draw conclusions regarding his state of mind
shortly after the incident. The rape comment also demonstrates Daniel’s lucidity and is
probative of his potential bias against the officers. And although both statements are
certainly ugly and threatening, they are not so inflammatory as to unfairly distract the jury
into concluding that Daniel is a violent or unsavory character. As Plaintiffs point out in their
response, given Daniel’s condition, the jury is unlikely to conclude that Daniel’s rape threat
was sincere. Because the probative value of Daniel’s statements in the ambulance outweigh
any unfair prejudice, see Fed. R. Evid. 403, Plaintiffs’ motion in limine number 19 is denied.
C.

No. 22, Preclude and/or Bar Evidence/Argument Regarding Allegations
that Plaintiffs Were Under the Influence of Drugs and/or Alcohol at the
Time of Incident

As alluded to above in part II-A, Plaintiffs move this court to exclude any evidence
that Plaintiffs were under the influence of alcohol or drugs at the time of their altercation

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with Defendants.2 They assert that there is no evidence that Plaintiffs were under the
influence of drugs or alcohol when they encountered Defendants, and thus argue that any
allusions to their use of drugs or alcohol on that day should be excluded under Rules 401
through 404. In response, Defendants have submitted for the court’s review transcripts of
the depositions of Michael Day and Michael McGrath, two paramedics who treated Daniel
at the scene and in the ambulance on the way to the hospital. McGrath testified that he wrote
in his report that Daniel admitted to smoking marijuana, but when questioned extensively on
that point by Daniel’s attorney, he said that he could not be sure whether the notation was
based on past use or use on that day. (McGrath Dep. at 91-96.) McGrath also testified that
although he noted that Daniel smelled of alcohol, he could not say for sure whether Daniel
was under the influence. (Id. at 94-96.) Day’s testimony is much less equivocal. He stated
clearly that he observed that Daniel smelled of alcohol and was being belligerent during the
ambulance ride. (Day Dep. at 49.) In fact, he said that he observed a “strong” smell of
alcohol on Daniel’s breath. (Id. at 49, 51.) Day testified that Daniel appeared to him to be
under the influence of alcohol based on his behavior, glassy eyes, and slurred words. (Id. at

2

In their motion number 5, Plaintiffs sought to exclude pre- and post-occurrence drug and
alcohol use by the driver of and another passenger in the car in which Daniel was riding. To
the extent their omission of these individuals from the current motion is an oversight,
Plaintiffs may submit a brief supplemental motion regarding the driver’s and passenger’s
drug or alcohol use or possession as it relates to the underlying incident by no later than May
24, 2011. Defendants may file a response thereto by May 26, 2011.
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51-53, 62.) When pressed to describe whether he believed him to be slightly drunk or “a
little buzzed,” Day clearly stated that “He seemed drunk.” (Id. at 61.)
After Defendants presented this testimony, Plaintiffs submitted two supplemental
memoranda making several valid points about how Day could have confused Daniel’s
medical symptoms with signs of intoxication. (R. 244, 247.) They will have ample
opportunity to make those points through vigorous cross-examination at trial. But for
purposes of this motion, what matters is that a jury could conclude from Day’s testimony that
Daniel was intoxicated to the point where his condition impacted his perception of the events
as they unfolded. Where there is reason to believe that alcohol or marijuana had seriously
impaired a witness’s memory of the events to which he is testifying or prevented him from
understanding the events at the time they occurred, evidence of his drug or alcohol use is
admissible. Spano, 421 F.3d at 606. Here Day’s testimony is relevant not only for those
reasons, but because evidence that Daniel was intoxicated makes it more likely that he acted
in the way the Defendants say he did. See Saladino v. Winkler, 609 F.2d 1211, 1214. In
other words, the evidence helps to explain the facts and circumstances Defendants confronted
before, during, and after the arrest. See Graham, 490 U.S. at 397. And although it is true
as Plaintiffs say that Day’s evidence could “paint the Plaintiffs in a bad light,” that
prejudicial impact is substantially outweighed by its probative value. See Fed. R. Evid. 403.
Accordingly, Plaintiffs’ motion in limine number 22 is denied.

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D.

No. 24, Finding and/or Guilty Verdict of Battery Against Plaintiff Casares

Plaintiffs argue that Daniel’s battery conviction should be excluded because,
according to them, it is irrelevant to the question whether Defendants’ actions were
objectively reasonable. They argue that because the conviction was not a fact known to
Defendants when they used force against Daniel, it is not a factor to be considered in
weighing whether the officers’ conduct was reasonable. They also argue that this evidence
is “overly prejudicial” under Rule 403. Defendants object, arguing that “the criminal
conviction removes any factual dispute related to the punch from contention.” (R. 220,
Defs.’ Resp. at 2.)
As explained above in part I-D, Plaintiffs will be collaterally estopped and precluded
by the rule in Heck from presenting evidence that conflicts with Daniel’s battery conviction.
The fact that Daniel intentionally struck Officer Bernal is relevant to explain the chain of
events leading up to the officers’ use of force.

For example, under quite similar

circumstances the Gilbert court instructed the district judge to inform jurors that the plaintiff
in an excessive force case had “struck the first blow,” 512 F.3d at 902. Whether the added
fact of the conviction will be introduced at trial will turn on how Plaintiffs present their case,
and so any determination regarding the admissibility of the conviction itself is best left for
trial. As Plaintiffs request, if evidence regarding Daniel’s battery conviction is introduced
at trial, Plaintiffs will be permitted to introduce evidence showing that he was acquitted of

26

obstruction and resisting arrest. But in all other respects, Plaintiffs’ motion in limine number
24 is denied.
E.

No. 26, Testimony and Expert Report by Dr. Gary M. Yarkony

Plaintiffs move to exclude Defendants’ expert witness Gary Yarkony, arguing that his
opinion should be automatically excluded because his report does not comply with Federal
Rule of Civil Procedure 26(a)(2)(B). Rule 26(a)(2)(B)(v) and (vi) require an expert witness
to include in his report a list of cases in which the witness has testified in the previous four
years and a statement detailing the compensation he received to produce the report and
provide testimony. Defendants concede that Yarkony’s original report omitted those details,
but they have informed this court that they provided Plaintiffs’ counsel with that information
after they reviewed this motion in limine. And as Defendants pointed out at the hearing on
the parties’ motions in limine on May 13, 2011, Plaintiffs have had Yarkony’s report for
several months and never lodged an objection or brought the deficiency to Defendants’
attention until they filed the current motion. Nor did they move for sanctions as provided in
Federal Rule of Civil Procedure 37(c)(1). Thus this case is unlike those cited by Plaintiffs,
in which parties or experts submitted untimely reports or delayed providing information even
after it was requested. See, e.g, Salgado by Salgado v. General Motors Corp., 150 F.3d 735,
738 (7th Cir. 1998); Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo y Benficiencia de
Puerto Rico, 248 F.3d 29, 34 (1st Cir. 2001). Rather, this motion represents a fairly
transparent attempt on Plaintiffs’ part to play “gotcha” with the hope of knocking out

27

evidence on the eve of trial. Because Plaintiffs could have ameliorated any harm the
deficiency caused by requesting the missing information when they initially received the
report or in any of the weeks thereafter, Plaintiffs motion in limine number 26 is denied.
Conclusion
For the foregoing reasons, the parties’ motions in limine are granted in part and denied
in part.
ENTER:

_________________________________
Young B. Kim
United States Magistrate Judge

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