Durham et al v. Lake County Indiana

Filing 152

OPINION AND ORDER granting 139 Motion in Limine; granting in part 142 Motion in Limine as described in the attached order. Signed by Magistrate Judge John E Martin on 6/29/2022. (smb) Modified on 6/30/2022 to edit text (mlc).

USDC IN/ND case 2:13-cv-00300-JEM document 152 filed 06/29/22 page 1 of 4

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAVID DURHAM, et al.,
Plaintiffs,

)
)
)
)
)
)
)

v.
LAKE COUNTY INDIANA,
Defendant.

CAUSE NO.: 2:13-CV-300-JEM

OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion in Limine [DE 142], and
Defendant’s Motion in Limine [DE 139], both filed June 3, 2022. Defendant filed its response to
Plaintiff’s motion on June 17, 2022; Plaintiffs did not file a response to Defendant’s motion, nor
a reply in support of their own, and the time to do so has expired.
I.

Analysis
A motion in limine will be granted “only when evidence is clearly inadmissible on all

potential grounds.” Hawthorne Partners v. AT & T Techs., Inc., 831 F. Supp. 1398, 1400 (N.D.
Ill. 1993); see also Dartey v. Ford Motor Co., 104 F. Supp. 2d 1017, 1020 (N.D. Ind. 2000).
Most evidentiary rulings will be resolved at trial in context, and this “ruling is subject to change
when the case unfolds.” Luce v. United States, 469 U.S. 38, 41-42 (1984). The Court considers
each request in turn.
Some requests for exclusion were either agreed or not objected to. On review of the
requests, the Court concludes that evidence, testimony, or argument on the following topics will
be excluded:
A.

Settlement discussions;

B.

Expert reports, except for purposes of impeachment;
1

USDC IN/ND case 2:13-cv-00300-JEM document 152 filed 06/29/22 page 2 of 4

C.

Comments about any party’s or counsel’s character, whether demeaning or
complimentary;

D.

Counsel’s beliefs as to parties’ or witnesses’ honesty;

E.

Evidence of Plaintiffs’ attorney-client relationship with their counsel;

F.

Comments about Plaintiffs’ ability to invest any award, or that the case is a get
rich quick scheme or lottery, or whether an award is taxable;

G.

Comments about Defendant’s ability to pay verdict, negative financial
consequences of any award, impact on juror’s tax bills as a result of any award, or
economic hardship of Defendant;

H.

Failure to call a witness;

I.

Timing of filing of lawsuit;

J.

The motions in limine, pretrial process, or discovery;

K.

References or suggestions by counsel about their personal beliefs as to any
parties’ claims or witness credibility;

L.

Testimony of undisclosed expert witnesses, surveillance tapes, photos, statements,
or other undisclosed substantive materials;

M.

Lay witness evidence requiring scientific, technical or other specialized
knowledge of an expert witness;

N.

Other Lawsuits, claims or charges against Defendant;

O.

Media accounts involving Defendant or its agencies or employees;

P.

Insurance;

Q.

Liquidated damages, punitive damages, punishment, or similar ideas;

R.

Reference to the “Golden Rule,” putting jurors in Plaintiffs’ shoes, or similar
arguments.

There were also some requests that the other party objected to.
AA.

Character evidence/Bad Acts/Criminal Convictions of Plaintiffs

Plaintiffs request that any testimony, evidence, or argument regarding bad acts, and prior
2

USDC IN/ND case 2:13-cv-00300-JEM document 152 filed 06/29/22 page 3 of 4

criminal charges or convictions of Plaintiffs be excluded. Although evidence of prior bad acts is
generally excluded, see Fed. R. Evid. 404(b), Defendant argues that evidence of convictions for
certain offenses, and when combined with evidence of an arrest, evidence of a prior inconsistent
statement as to an arrest, could be admissible for purposes of impeachment. The Federal Rules of
Evidence prohibit evidence of prior bad acts to establish character or actions in conformity with
those behaviors, Fed. R. Evid. 404(b), or of criminal convictions, except for criminal convictions
of crimes punishable by death or imprisonment in excess of one year, or criminal convictions for
which the conviction “required proof or admission of an act of dishonesty or false statement by
the witness.” Fed. R. Evid. 609(a). Credibility may be addressed by evidence as to truthfulness or
untruthfulness only after the character of the witness for truthfulness has been attacked by
opinion or reputation or otherwise. Fed. R. Evid. 608. Accordingly, evidence of prior bad acts of
any party will be excluded, except for purposes of impeachment or evidence of convictions as set
forth in the Federal Rules of Evidence, and “unless and until Defendant alerts the Court and
opposing counsel outside the presence of the jury that it seeks to admit particular evidence under
Federal Rule of Evidence 404(b).” Cimaglia v. Union Pac. R. Co., 2009 U.S. Dist. LEXIS
14518, at *7, 2009 WL 499287, at *7 (C.D. Ill. Feb. 25, 2009). See also Jackson v. Allen, No.
1:09-cv-117, 2011 U.S. Dist. LEXIS 44239, at *19 (N.D. Ind. Apr. 25, 2011) (holding that the
slight probative value is outweighed by the risk of undue prejudice if the prior criminal
convictions were paraded before the jury).
BB.

Comments that Plaintiffs’ counsel is asking for more than expected to win or
Comments that Defendant’s counsel is “shocked by Plaintiffs’ request for
damages”

Plaintiffs argue that Defendant should be barred from making any references that they are
asking for more than they can expect to win, or that Defendant’s counsel is “shocked by
3

USDC IN/ND case 2:13-cv-00300-JEM document 152 filed 06/29/22 page 4 of 4

Plaintiffs’ request for damages.” Defendant argues that it should be able to urge the jury to use
reason when assessing damages and advise the jury that it does not think Plaintiffs have proved
certain elements of damages. Counsels’ argument as to damages proved or unproved are not
evidence but must conform to the evidence. Counsel are reminded of their ethical obligations
under the Indiana Rules of Professional Conduct as well. Argument as to juror’s ability to weigh
the evidence and what the evidence has or has not shown, within the bounds of counsel’s
obligations under applicable rules, will not be barred. See Simpson v. Brewer, No.
19-CV-00410-NJR, 2021 U.S. Dist. LEXIS 149607, at *14-15 (S.D. Ill. Aug. 9, 2021)
(“[W]hether comments during opening statement and closing argument are proper is a matter
that the Court must determine in context. It will decide these issues as they arise at trial.”)
(quoting Cimaglia, 2009 WL 499287, at *7 (C.D. Ill. Feb. 25, 2009)).
II.

Conclusion
For the foregoing reasons, the Court hereby GRANTS in part Plaintiffs’ Motion in

Limine [DE 142] and GRANTS Defendant’s Motion in Limine [DE 139], as described above.
So ORDERED this 29th day of June, 2022.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

4