McCadd et al v. Murphy et al

Filing 87

The plaintiffs' consolidated motions in limine [77-1] are granted in part and denied in part as detailed below. The defendants' consolidated motions in limine [78-1] are granted in part, denied in part, or the court defersruling on the motion, as detailed below. WRITTEN Opinion entered by the Honorable Blanche M. Manning on 5/25/2011: Mailed notice(rth, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Blanche M. Manning

CASE NUMBER

Sitting Judge if Other
than Assigned Judge

09 CV 1958

DATE

CASE
TITLE

May 25, 2011

McCadd v. Murphy

DOCKET ENTRY TEXT

The plaintiffs’ consolidated motions in limine [77-1] are granted in part and denied in part as detailed below.
The defendants’ consolidated motions in limine [78-1] are granted in part, denied in part, or the court defers
ruling on the motion, as detailed below.
Docketing to mail notices.

O [ For further details see text below.]
00:00

STATEMENT
Plaintiffs Anna McCadd and her son Harold (for clarity, the court shall use only their first names) allege that
Chicago police stormed their home looking for drugs not once but twice, coming up empty-handed on both
occasions. Police arrested Harold after the second search, but prosecutors eventually dropped the charges due
to lack of evidence. Harold and Anna, who is in her 90's, have sued the City of Chicago and four of its police
officers for illegal search and false arrest in violation of the U.S. Constitution, see 42 U.S.C. § 1983, as well as
a variety of state law claims including malicious prosecution.
Before the court are motions in limine the parties have filed in advance of trial. Judges have broad discretion
when ruling on motions in limine. See Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002).
Evidence should be excluded on a motion in limine “only when evidence is clearly inadmissible on all potential
grounds [and unless] evidence meets this high standard, evidentiary rulings should be deferred until trial.”
Steck v. Bimba Mfg Co., 96 CV 7442, 1997 WL 685003, at *1 (N.D. Ill. Oct. 30, 1997) (internal quotation
marks and citation omitted). The denial of a motion in limine does not mean that the evidence is necessarily
admissible, rather, it means only that the party moving in limine has not demonstrated that there is no possible
basis for the admission of the evidence. Holmes v. Sood, No. 02 CV 7266, 2006 WL 1988716, at *1 (N.D. Ill.
July 12, 2006); see also Alexander v. Mt. Sinai Hosp. Med. Center of Chicago, No. 00 C 2907, 2005 WL
3710369 at *2 (N.D. Ill. Jan.14, 2005). Further, the denial of a motion in limine does not preclude a party from
objecting to the admission of any evidence at trial. United States v. Connelly, 874 F.2d 412, 416 (7th Cir.
1989) (“a ruling [on motion in limine is] subject to change based upon the court's exposure to the evidence at
trial”).
Keeping in mind these observations, the court addresses the parties’ motions in limine in turn.
Plaintiffs’ Consolidated Motions in Limine [77-1]
Plaintiffs’ Motion #1 to Bar Any Reference To Harold McCadd’s Prior Arrests and Convictions
In this motion, the plaintiffs seek to bar the defendants from referring to Harold’s prior arrests and/or his
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STATEMENT
conviction in 1986 of an unidentified crime. Under Federal Rule of Evidence 609, evidence of a prior felony
conviction or other conviction involving dishonesty may be used to attack a witness’ credibility, but only if it is
less than ten years old. Thus, none of the arrests are admissible to attack his credibility, nor is his sole
conviction because it occurred more than ten years ago.
Nevertheless, the defendants argue that they are entitled to use evidence of McCadd’s March 25, 2004, arrest
for possession of cocaine, not to attack his credibility but, rather, as information defendant officer William
Murphy used to corroborate an affidavit he obtained from a confidential informant, which he then used to
establish probable cause for a warrant to search the McCadd home. Probable cause may be established by
affidavit if the affidavit identifies sufficient evidence to convince a reasonable person that a search will uncover
evidence of the alleged crime. United States v. Carmel, 548 F.3d 571, 575 (7th Cir. 2008). However, when an
informant supplies the facts in the affidavit, the probable cause determination also turns on the informant's
credibility, including the extent to which the informant’s information can be corroborated. See United States v.
Bell, 585 F.3d 1045, 1049-50 (7th Cir. 2008).
The plaintiffs contend that Murphy’s review of the report of Harold’s arrest is irrelevant because during his
deposition Murphy stated that he used the arrest report only to verify Harold’s address, not to confirm that the
informant was telling the truth:
Q:

You weren’t using that [the arrest report] for any kind of indication [that] what John Doe was
telling me was true?

A:

No. . . . just to try to verify residency.

Murphy Deposition (attached as Exhibit A to Reply [81-1]) at 75 (lines 14-21).
Evidence of the steps officer Murphy took to corroborate the confidential informant’s affidavit are relevant to
whether the affidavit provided probable cause for the search warrant. If Murphy testifies at trial that he used
the 2004 arrest to corroborate the informant, then evidence of the arrest shall not be excluded. To the extent
that Murphy’s prior deposition testimony is inconsistent with his anticipated trial testimony, the prior
deposition testimony is available to impeach Murphy’s trial testimony, but not to exclude it.
Accordingly, the motion in limine is granted in part and denied in part as follows: the motion to exclude
evidence that Murphy reviewed McCadd’s 2004 arrest to corroborate the informant’s affidavit is denied, while
the motion to exclude all other arrests and his prior conviction is granted. See Fed. R. Evid. 609.
Plaintiffs’ Motion #2 to Exclude Evidence of Harold’s Prior Drug Use
Next, the McCadds seek to exclude evidence of Harold’s prior use of marijuana and cocaine. The defendants
respond that they will not elicit such evidence unless Harold first opens the door. Accordingly, the motion to
exclude evidence of Harold’s prior drug use is granted unless Harold raises the issue himself.
Plaintiffs’ Motion #3 to Bar Reference to Irrelevant Subjects
The McCadds move to bar any evidence of several matters that arose during their depositions but which they
contend are irrelevant. Those five matters are: (1) that the plaintiffs receive public aid; (2) that Harold
attended an alcohol rehabilitation program; (3) that Harold and friends may have smoked marijuana in his home
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STATEMENT
before the second search; (4) 911 calls of narcotics sales at the McCadd home; and (5) empty baggies found
under Harold’s bed during the first search of his home. The defendants respond that they do not intend to
introduce evidence about public aid or alcohol rehabilitation. Accordingly, the motion to exclude evidence on
those two matters is granted.
The defendants respond that they also do not intend to introduce evidence that Harold may have used marijuana
before the second search unless Harold opens the door by denying prior drug use. Accordingly, consistent with
the court’s ruling on plaintiffs’ motion #2, evidence of Harold’s prior drug use is excluded unless Harold raises
the issue himself.
The defendants object to the motions to exclude evidence on the two remaining matters. First, the defendants
contend that evidence of 911 calls reporting drugs sales at the McCadd’s home are relevant because “a
reasonable jury could infer that Mr. McCadd, one of only two residents at 9429 S. Loomis, was selling drugs
from that residence.” Response [79-1] at 4. However, to the extent the defendants are arguing that the reports
of drug sales provided probable cause to search the McCadd home, the defendants do not contend that officers
knew about the calls when obtaining the search warrant. Because probable cause turns on what officers knew
at the time, and the defendants do not contend that officers knew about the 911 calls, the calls are not relevant
to the issue of probable cause. See Guzman v. City of Chicago, 565 F.3d 393, 396 (7th Cir. 2010) (information
unknown at the time the warrant issued is irrelevant to whether probable cause existed).
Alternatively, the defendants argue that the calls establish that Harold is a “hardened drug dealer,” and that the
“police raid” on his house would have had little “emotional effect” on him and, therefore, is relevant to the
issue of damages. However, the calls do not establish that Harold dealt drugs, merely that calls reported
suspected drug activity. Therefore, the motion to exclude evidence of the 911 calls is granted.
Second, the defendants contend that evidence of baggies found under Harold’s bed during the first search of his
home is relevant “for the same reasons as the 911 calls are relevant.” Response [79-1] at 4. Specifically, the
defendants argue that the baggies are relevant for two reasons. First, they argue that baggies found during the
first search provided probable cause to obtain the warrant for the second search. However, the defendants have
identified no evidence in the record that officers who obtained the warrant for the second search knew about the
baggies found during the first search. Second, the defendants argue that the baggies are relevant to the issue of
damages, presumably because they believe that the baggies are additional evidence that Harold is a hardened
drug dealer. However, no drugs were found in the baggies and, therefore, baggies alone are not evidence that
Harold is a hardened drug dealer.
Accordingly, the motion to exclude evidence of the baggies is granted.
Plaintiffs’ Motion #4 to Bar Any Argument that Taxpayers Must Pay Any Judgment
Plaintiffs’ Motion #5 to Exclude Witnesses from the Courtroom Prior to Testifying
The defendants do not object to these motions and, therefore, they are granted.
Defendants’ Consolidated Motions in Limine [78-1]
Motion to Bar Evidence or Argument Regarding Strip Search of Harold McCadd
In this motion, the defendants seek to exclude any evidence or argument regarding two strip searches of Harold
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STATEMENT
McCadd. The first occurred in his home during the first search of his house. The second occurred at the police
station following his arrest during the second search of his home. The defendants contend that evidence that
the searches were strip searches should be excluded as irrelevant and highly prejudicial.
In response, the plaintiffs contend that the first strip search is admissible because the fact that officers found no
drugs on his person during the first search is relevant to whether officers had probable cause to obtain a warrant
for the second search. As discussed above, probable cause is determined based on what was known at the time
the warrant issued. See Guzman, 565 F.3d at 396. The McCadds are therefore entitled to present evidence of
what officers knew when obtaining the warrant for the second search of their home, including the strip search
that allegedly occurred during the first search of their home.
As for the second search, it allegedly occurred at the police station following his arrest during the second search
of his home. Therefore, it is relevant to the damages he claims he suffered as a result of his alleged false arrest.
The defendants contend that even if the strip searches are relevant, they should nevertheless be excluded as
highly prejudicial. Specifically, the defendants contend that any mention of a strip search will be “highly
inflammatory” and poses a “substantial risk that it will inflame the passion of the jury” and “pose a risk of jury
nullification.” Memorandum [78-1] at 2; Reply [82] at 1.
Under Federal Rule of Evidence 403, relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . .” However, the defendants have previously described the
search as being inoffensive:
the alleged body search was limited in scope, conducted in a professional manner, in the privacy
of Plaintiff Harold McCadd’s bedroom, and thus a reasonable search. (56.1 ¶¶¶ 29, 30, 31, 33).
Plaintiff Harold McCadd admits that the body search was performed to see if he was concealing
any drugs or weapons on his person. (56.1 ¶ 32). He admits that the search was performed in a
professional manner. (56.1 ¶ 33). Plaintiff Harold McCadd testified that the search took place in
his bedroom with the windows closed and the curtains drawn. (56.1 ¶¶ 29, 30). Finally, Plaintiff
Harold McCadd admits that the entire search was performed visually without any physical
contact. (56.1 ¶ 31).
Memorandum in Support of Motion for Summary Judgment [58-1] at 8-9. Given the defendants’ evidence that
that the search was private, inoffensive, and involved no contact, their argument that jurors will be inflamed
upon hearing about the search is not well-founded. As a result, the probative value of the search is not
substantially outweighed by the danger of unfair prejudice.
Accordingly, evidence of the strip searches is admissible and the motion to bar such evidence is denied.

Motion to Bar Evidence Regarding the Identity of J. Doe Informant
The defendants seek to bar the plaintiffs from “asking questions of the officers concerning the identify of the J.
Doe informant.” Memorandum [78-1] at 2. The plaintiffs oppose the motion, arguing that they are entitled to
“impeach Officer Murphy’s reliance on John Doe for the purpose of determining whether there was probable
cause for the warrant.” Response [80-1] at 2.

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STATEMENT
The identity of confidential government informants is protected unless the party seeking disclosure shows that
his need for the informant’s identity outweighs the need to protect the informant’s confidentiality. See Roviaro
v. United States, 353 U.S. 53, 61-62 (1957); United States v. Herrero, 893 F.2d 1512, 1525 (7th Cir. 1990).
The plaintiffs have made no effort to show that their need for the informant’s identity outweighs the need to
protect the informant’s confidentiality and, therefore, may not seek to elicit the informant’s identity at trial.
Accordingly, the motion to bar questions seeking the identity of the confidential informant is granted.
However, this ruling does not preclude the plaintiffs from making general inquiries about the informant
designed to shed light on the reasonableness of officers’ reliance on the information procured from the
informant, such as: “(1) the extent to which police corroborated the informant's statements; (2) the degree to
which the informant acquired knowledge of the events through first-hand observation; (3) the amount of detail
provided; (4) the interval between the date of the events and the police officer's application for the search
warrant; and (5) whether the informant appeared before the issuing judge so that the judge could assess the
informant’s credibility.” United States v. Bell, 585 F.3d 1045, 1050 (7th Cir. 2008).
Motion to Bar Evidence that J. Doe is No Longer an Informant
Next, the defendants seek to bar evidence or argument that officers no longer consider J. Doe to be sufficiently
credible to use as a confidential informant. The plaintiffs contend that such evidence is relevant for two
reasons. First, they argue that evidence that officers no longer use J. Doe as a confidential informant supports
their position that they should be able to elicit the informant’s identity at trial. However, as discussed above, to
obtain the informant’s identity the plaintiffs needed to show that they were entitled to have the confidential
privilege set aside, which the plaintiffs have not attempted to do. Second, the plaintiffs argue that officers’
conclusion that the informant is not sufficiently credible shows that officers did not reasonably rely on
information from the informant when obtaining the warrant to search the McCadd home. However, in
determining whether the warrant was supported by probable cause, the court looks to what officers knew at the
time they sought the warrant, not with the benefit of hindsight. See Beauchamp v. City of Noblesville, 320 F.3d
733, 742-43 (7th Cir. 2003). Accordingly, officers’ discovery after executing the warrant that the informant
was unreliable is irrelevant to what they knew when they obtained the warrant.
Accordingly, the motion to bar evidence that J. Doe is no longer an informant is granted.
Bar Evidence or Argument Regarding Absence of Field Testing
The defendants also seek to bar evidence that officers did not field test what turned out to be talcum powder
before arresting Harold during the second search of his home. The defendants contend that discovery of a
substance they believe to be drugs can give an officer probable cause to arrest even in the absence of field
testing. However, in the authority they cite in support of their contention, probable cause to arrest was
supported by more than just the discovery of a suspicious looking substance that officers never tested. For
instance, in United States v. Johnson, 383 F.3d 538, 545 n.9 (7th Cir. 2004), the discovery of powder on the
defendant’s hat led officers to search his car. The court held that even though officers did not test the powder
to confirm that it was illicit, the search was supported by probable cause because officers were also aware of the
defendant’s cocaine habit, and that the defendant appeared to be unhealthy and “strung out.” Likewise, in
Daniels v. City of Chicago, No. 08 CV 6832, 2011 WL 887852, at *10 (N.D. Ill. Mar. 8, 2011), the court’s
finding of probable cause despite the absence of field testing was based upon other indications that a package
contained drugs, including packaging that resembled the way narcotics were typically packaged, along with
“red dots that Officer Darling associated with the practice of ‘cutting’ narcotics with other substances.”
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STATEMENT
In sharp contrast, the officers here had already determined that information obtained from the confidential
informant about what to expect inside the McCadd home had proven to be unreliable. Accordingly, the
authority they cite does not support their contention that field testing was unnecessary as a matter of law.
Because probable cause is judged by whether the “facts and circumstances within the officer's knowledge that
are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to commit an offense,” the defendants have
failed to demonstrate, based on the circumstances presented by this case, that the absence of any field test of the
talcum powder is irrelevant to whether they had probable cause to arrest. Michigan v. DeFillippo, 443 U.S. 31,
37 (1979).
Accordingly, the motion to bar evidence or argument about the absence of field testing is denied.
Bar Evidence that the Seized Powder Tested Negative for Narcotics
Next, the defendants seek to bar evidence or argument that the powder found during their search of the McCadd
home tested negative for narcotics. The defendants contend that the test results are irrelevant because probable
cause turns on what the officer knew at the time, not on later-discovered facts.
However, the fact that the powder tested negative is relevant for two other reasons. First, it completes the story
of officers’ discovery of the powder. Without evidence that it tested negative, jurors would be left to speculate
about whether tests were performed and, if so, the results. Likewise, it completes the story of Harold’s
malicious prosecution case because it contributed to the termination of the criminal proceedings against him.
See Fed. R. Evid. 401 (1972 Proposed Rules) (“Evidence which is essentially background in nature . . . is
universally offered and admitted as an aid to understanding.”); see also Pease v. Production Workers of
Chicago, No. 02 CV 6756, 2003 WL 22012678, at *2 (N.D. Ill. Aug. 25, 2003) (“This is a broad definition
which allows background evidence to be ‘universally offered and admitted as an aid to understanding.’”).
Accordingly, the motion to bar evidence of the test results is denied.
Bar Evidence or Argument About Missing Photographs
In this motion, the defendants seek to bar evidence that photographs officers took of the aftermath of their
second search of the McCadd home no longer exist. According to the defendants, technical difficulties
prevented officers from saving the pictures onto a disc and, as a result, the pictures were not preserved.
The fact that evidence is unavailable is admissible if the loss was willful or in bad faith and, in fact, it gives rise
to a presumption that the evidence would be adverse to the party who no longer has it. Spesco, Inc. v. General
Elec. Co., 719 F.2d 233, 239 (7th Cir. 1983). Even if the loss was not willful or in bad faith, the presumption
that it would be adverse still arises if the evidence was not preserved in violation of a retention policy. See
Beniushis v. Apfel, No.98 CV 395, 2001 WL 303548, *4 (N.D. Ill. Mar. 27, 2001).
The defendants offer two arguments why evidence of the lost pictures should nevertheless be barred. First, they
contend that it would be “improper to ask the jury to speculate about the absence of the photographs.”
Memorandum [78-1] at 6. In support, the defendants cite to Caldwell v. City of Chicago, No. 08 CV 3067,
2010 WL 380696, at *3 (N.D. Ill. Jan. 28, 2010), in which the court barred the plaintiff from insinuating that
the defendants had purposefully hidden exculpatory evidence. However, in Caldwell, whether evidence was
missing at all was entirely speculative. In contrast, the defendants here admit that the photographs are missing.
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STATEMENT
Second, the defendants contend that the Chicago Police Department lacks any policy of retaining photographs.
However, the issue is disputed by the plaintiffs and is therefore a question of fact. Moreover, even if the
Chicago Police Department did not require officers to retain photographs, the presumption that the photographs
would be adverse to the defendants would still arise if the plaintiffs can show that they were destroyed in bad
faith.
Accordingly, the motion to bar evidence that the photographs are missing is denied.
Motion to Bar Anna McCadd’s Statement to Daughter
Next, the defendants seek to bar testimony by Anna’s daughter about a phone call during which Anna allegedly
described how officers had ransacked her home while searching it with a dog. The plaintiffs concede that the
daughter’s testimony about the out-of-court statements of her mother would involve hearsay, but argue that
such statements fall within the excited utterance exception to the hearsay rule. Under Federal Rule of Evidence
803(2), a hearsay statement is admissible as an excited utterance if: (1) a startling event occurred; (2) the
declarant made the statement while under the stress of excitement caused by the startling event; and (3) the
declarant's statement relates to the startling event. United States v. Vargas, No. 08 CR 630, 2011 WL 116826,
at *2 (N.D. Ill. Jan. 6, 2011).
Although the plaintiffs state that Anna’s call came after police had already left her home, the parties reveal few
other details surrounding the call. Accordingly, at this time the court has before it insufficient details to
determine whether Anna’s statements during the call constitute excited utterances.
Accordingly, the court defers ruling on the motion at this time. If, at trial, the defendants believe that testimony
about the circumstances surrounding the telephone call do not establish that Anna’s statement was an excited
utterance, they may renew their motion to exclude at that time.
Motion to Bar Evidence About Whether Harold McCadd Received Miranda Warnings
The defendants also seek to exclude evidence about whether Harold received Miranda warnings. The plaintiffs
respond that they will not seek to introduce such evidence. Accordingly, the motion is granted.
Motion to Bar Evidence About the Length of Harold McCadd’s Detention
In this motion, the defendants seek to bar Harold from introducing evidence about the length of time he was
detained in lockup by Chicago police. In support, the defendants contend that the length of his detention is
irrelevant because he has brought only a false arrest, not an unlawful detention, claim and, in any event, his
length of detention did not exceed 48 hours and is therefore presumptively reasonable.
Harold has not brought an unlawful detention claim. However, his detention is nevertheless relevant because it
constituted the time between his arrest and his release, the period of time for which he would be entitled to
reasonably foreseeable damages if he prevails on his false arrest claim. See Ross v. City of Evanston, No. 96
CV 6042, 1998 WL 177738, at *2 (N.D. Ill. Apr. 13, 1998).
Accordingly, the motion to bar evidence of the length of his detention is denied.

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Motion to Bar Anna’s Statement that Officers Beat Up Men in Her Neighborhood
The defendants next seek to bar testimony that officers beat up young men in the McCadd’s neighborhood, as
described by Anna during her deposition. The defendants contend that such testimony would be propensity
evidence that is inadmissible under Federal Rule of Evidence 404(b). However, the plaintiffs propose using
such evidence not to show officers’ propensity to beat up young men but, rather, to explain that Anna’s consent
to the first search of her home was not voluntary but, rather, done out of fear that officers would beat up Harold
if she refused to consent. Because the evidence is not being used to show propensity, it is not barred under
Rule 404(b).
Alternatively, the defendants argue that the evidence is unduly prejudicial, and should therefore be excluded
under Rule 403. As discussed above, under Rule 403 admissible evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice. Anna’s argument that her consent to search
was not voluntary is firmly rooted in her alleged fear that officers would beat up Harold like they had beaten up
other men. Therefore, testimony about her fear and upon what it was based is highly probative of the issue of
whether her consent was voluntary. The court acknowledges that testimony about officers beating up men in
unrelated cases may carry a danger of unfair prejudice, but finds that a limiting instruction would ameliorate
any danger and ensure that it does not substantially outweigh the probative value.
Accordingly, the motion to bar testimony from Anna that officers beat up young men in her neighborhood is
denied. The parties are directed to draft an agreed limiting instruction for use in the event that plaintiffs offer
such evidence.
Motion to Bar Evidence of Unrelated Complaints About the Defendant Officers
The defendants seek to bar evidence of complaints or previous lawsuits against the defendant officers unrelated
to the events at issue in this lawsuit. The plaintiffs respond that they will not seek to introduce such evidence.
Accordingly, the motion to bar evidence of complaint or previous lawsuits against the defendant officers is
granted.
Motion to Bar Witnesses Southerland, King, Wells and “Phil”
Finally, the defendants seek to bar the plaintiffs from presenting the following persons as witnesses: Anthony
Southerland, Michael King, Chandra Wells, and “Phil.” The defendants seek to exclude Southerland, Wells
and “Phil” as witnesses because the plaintiffs’ Federal Rule of Civil Procedure 26(a)(1) disclosures failed to
provide addresses, contact numbers, or other identifying information for those witnesses and therefore were
inadequate.
When a party fails to meet its disclosure obligations under Federal Rule of Civil Procedure 26(a), “the party is
not allowed to use that information or witness to supply evidence . . . unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). In determining whether a failure to disclose was
substantially justified or harmless, the following factors are relevant: (1) the prejudice or surprise to the
opposing party; (2) the ability to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad
faith or willfulness involved in failing to timely disclose the evidence or witness. See David v. Caterpillar,
Inc., 324 F.3d 851, 857 (7th Cir. 2003).

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The first factor is satisfied by the fact that the defendants have been unable to locate Southerland, Wells, and
“Phil” and therefore have been unable to depose them in order to determine what their trial testimony would be.
The defendants would therefore be subject to unfair surprise and be prejudiced by their inability to adequately
prepare for trial. As for the second factor, the plaintiffs state that they still have no contact information for
Southerland and “Phil” and, therefore, the plaintiffs have identified no basis for concluding that the prejudice
could be cured. Although the defendants have identified nothing in the record that points to bad faith or
willfulness on part of the plaintiffs, the court concludes in its discretion that, on balance, the relevant factors
favor the exclusion of Southerland and “Phil” as witnesses at trial.
On the other hand, the plaintiffs provided additional contact information to the plaintiffs for Wells who,
according to the plaintiffs, could not be reached any earlier because she suffered a stroke and has only recently
been well enough to be deposed. Because Wells was deposed on May 16, 2011, and because trial is still weeks
away, the court concludes that, on balance, the plaintiffs have demonstrated that their earlier failure to provide
adequate contact information for Wells was substantially justified or harmless. The motion to exclude Wells as
a witness is therefore denied.
Finally, the defendants also seek to exclude Michael King as a witness because he did not comply with their
properly-served subpoena for deposition. However, the defendants have cited no authority to support their
argument that a non-party’s non-appearance for deposition justifies imposing the sanction of exclusion on the
plaintiffs. Moreover, even though the deposition at which King failed to appear was scheduled for January 12,
2010, the defendants never filed a motion to compel or any other appropriate motion designed to address the
issue in a timely manner. Accordingly, the motion to exclude King as a witness is denied.
rs/cpb

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