Lopez v. City of Chicago, Illinois et al
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 2/3/2017. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
JOSE LOPEZ, by his wife and next best
friend, Sandra Cardiel,
Case No. 12-cv-5751
STEVAN VIDLJINOVIC, et al.,
Judge John Robert Blakey
MEMORANDUM OPINION AND ORDER
This matter is set for a jury trial on February 6, 2017 . On January 30,
2017, the Court held a Final Pretrial Conference and ruled upon: (1) various issues
implicated by parties’ Proposed Pretrial Order ; (2) the parties’ motions in
limine  ; (3) Plaintiff’s Motion To Compel the Testimony of Mayor Rahm
Emanuel ; (4) Defendants’ Motion To Bifurcate ; and (5) Plaintiff’s oral
motion to amend his complaint. The Court summarized its oral rulings from the
Final Pretrial Conference in a written pretrial Order .
Plaintiff has now filed a Motion For Clarification, Or, In The Alternative, For
Reconsideration . Plaintiff seeks multiple forms of relief in the present motion,
which the Court addresses in order.
Defendants’ Motion To Bifurcate
Plaintiff’s first issue concerns the Court’s decision to bifurcate the trial into
separate phases for liability and damages (if necessary). As previously explained
, under Federal Rule of Civil Procedure 42(b) and Seventh Circuit precedent,
the Court resolves bifurcation requests under the traditional procedure: “First, the
trial judge must determine whether separate trials would avoid prejudice to a party
or promote judicial economy. Only one of these criteria—avoidance of prejudice or
judicial economy—need be met before a court can order separation. Next, the court
must be satisfied that the decision to bifurcate does not unfairly prejudice the nonmoving party. Finally, separate trials must not be granted if doing so would violate
the Seventh Amendment.” Fetzer v. Wal-Mart Stores, Inc., No. 13-cv-9312, 2016 WL
6833912, at *3 (N.D. Ill. Nov. 21, 2016) (internal quotation omitted).
Bifurcation here serves to avoid unfair prejudice to Defendants. In this case,
as in Fetzer, Defendants note that the jury “may improperly consider purely
damages evidence when assessing the issue of liability.” Id. And, as in Fetzer, this
concern is well-founded given the serious nature of Plaintiff’s injuries. Id. There is
also no Seventh Amendment problem here, as the Court will empanel the same jury
for both phases, if necessary.
Plaintiff nevertheless seeks reconsideration of this Court’s bifurcation ruling,
because he believes that he will be prejudiced if the jury, when analyzing “the
nature and quality of the intrusion by the officers,” is precluded from considering
“the severity of the brain injury inflicted on Jose Lopez.”  at 5. Plaintiff is
Whether Defendants are liable for utilizing excessive force depends upon the
objective reasonableness of the force used, in light of the pertinent context and
reasonably foreseeable harms.
As such, the issue of liability turns upon the
reasonableness of the force employed by the Defendants, rather than any
unforeseeable results that flowed from that force. See Sherrod v. Berry, 856 F.2d
802, 804-05 (7th Cir. 1988) (“When a jury measures the objective reasonableness of
an officer’s action, it must stand in his shoes and judge the reasonableness of his
actions based upon the information he possessed and the judgment he exercised in
responding to that situation.”) (emphasis in original).
Here, the question of force concerns the use of the Taser: Defendant
Vidljinovic used his Taser on Plaintiff once.  (noting the parties’ stipulation
that “Officer Vidljinovic tasered Jose Lopez”).
The first phase of trial will
Consequently, the general risks presented by Tasers remain relevant to the
question of whether it was objectively reasonable for Defendant Vidljinovic to utilize
his Taser in this instance. Similarly, the fact that Plaintiff actually did fall to the
ground and hit a hard surface remains relevant to the question of whether
Defendants’ behavior was objectively reasonable.
In this case, however, the extent of Plaintiff’s injuries, and his long-term
suffering resulting from his fall, are not part of the reasonably foreseeable analysis;
and thus Plaintiff must reserve such evidence for the damages phase of trial. See
Mineo v. City of N.Y., No. 09-cv-2261, 2013 WL 1334322, at *2 (E.D.N.Y. Mar. 29,
2013) (The “evidence relevant to the damages issue could have a prejudicial impact
upon the jury’s liability determination . . . [h]eaping on additional evidence related
to damages will only heighten the prejudice to defendant . . . and may result in a
jury verdict that is based on considerations wholly separate and apart from issues of
liability.”). Given the facts at issue here, the extent of Plaintiff’s physical injuries
are simply not probative to the reasonableness of the force employed, because the
Plaintiff’s degree of force allegations concern the type of force, rather than the
amount of force. Plaintiff does not claim that the “amount” of force used here was
excessive (i.e., there is no allegation any Defendant hit Plaintiff on the head with an
object or otherwise threw him to the ground). Instead, Plaintiff’s alleged theory of
damages flows from the “type” of force, that is, the purportedly unreasonable
decision to use the Taser, which caused him to “crash to the ground, striking his
head violently on the sidewalk, and to cry out with horrible sounds and groans of
pain.” Fourth Amended Complaint, ¶¶ 44, 50 . 1 (“Defendant STEVAN
VIDLJINOVIC tasered JOSE LOPEZ causing him to fall face first and his head to
strike with such violent force that he sustained a skull fracture.”).
Moreover, to the degree that any evidence remains relevant to both damages
and liability, Plaintiff may explore such evidence during the liability phase upon
obtaining leave of Court at sidebar. As the Court previously explained:
There is no “time frame” or other temporal limitation on
evidence and argument available to the parties during
Instead, the governing delineation is
between evidence or argument which goes to liability, and
evidence or argument which goes to Plaintiff’s damages.
To the extent either party intends to raise an argument or
introduce evidence which is potentially relevant to both
 also alleges Defendants “violently turned him face down on the sidewalk” while handcuffing him, but no
evidence or expert medical testimony proffered by Plaintiff connects this allegation to his injuries.
inquiries, that party must first raise the issue with the
Court at sidebar.
 at 13. In light of the above, the Court denies Plaintiff’s motion to reconsider
Plaintiff’s Motion to Amend
Plaintiff also renews his oral motion to amend his complaint, originally made
for the first time during the Final Pretrial Conference. Plaintiff is seeking to add
new claims for his wife and four children under 42 U.S.C. § 1983. Federal Rule of
Civil Procedure 15(a) provides that if a party is not entitled to amend a pleading as
a matter of course, it may amend “with the opposing party’s written consent or the
court’s leave” and the court normally gives leave freely “when justice so requires.”
Fed. R. Civ. P. 15(a)(2). Under long-standing precedent, however, trial courts “in
their sound discretion may deny a proposed amendment if the moving party has
unduly delayed in filing the motion, if the opposing party would suffer undue
prejudice, or if the pleading is futile.” Soltys v. Costello, 520 F.3d 737, 743 (7th Cir.
2008) (“[T]he longer the delay, the greater the presumption against granting leave
to amend.”) (internal quotations omitted).
In light of the foregoing principles, this Court denies Plaintiff renewed
request to amend. Plaintiff filed this case in 2012 . Plaintiff has amended his
complaint three times since then, with the operative complaint filed in July of 2013
. Discovery closed in July of 2015 , with limited depositions wrapping up
later that year .
The parties fully briefed, and the Court issued written
opinions resolving, two separate dispositive motions [157, 158]. The parties have
already engaged in extensive trial preparation, as evidenced by their filings in
advance of the Final Pretrial Conference [159, 162, 164, 165]. In short, this case is
ready for trial, yet Plaintiff waited until now to seek to add five new parties, with no
adequate justification for this delay and at substantial prejudice to the Defendants.
Based upon the record, this Court again denies Plaintiff’s request to amend.
Plaintiff’s “Empty Chair” Problem
Finally, Plaintiff notes that in light of: (1) the Court’s previous ruling
regarding bifurcation; (2) the Court’s previous ruling regarding Plaintiff’s “day in
the life” video; and (3) Plaintiff’s own medical limitations that may preclude him
from attending trial, he is facing an “empty chair” problem. If Plaintiff is incapable
of attending trial, the Court will consider issuing a limiting instruction to the jury
to address this concern. The parties should be prepared to discuss any potential
limiting instructions, and any other issues they may have, at 9:30 a.m. on February
Plaintiff Jose Lopez’s Motion For Clarification, Or, In The Alternative, For
Reconsideration  is granted in part and denied in part.
The Court’s prior
ruling that this trial shall be bifurcated into separate liability and damages phases
stands. The Court’s prior ruling denying Plaintiff’s motion to amend stands. The
Court, cognizant of Plaintiff’s “empty chair” concern, grants the present motion for
clarification in part, and will consider a proper limiting instruction if needed. All
previously set dates to stand.
Dated: February 3, 2016
John Robert Blakey
United States District Judge
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