ESTATE OF TERRY GEE, JR. v. MONROE COUNTY SHERIFF et al
ENTRY ON PENDING MOTIONS - Defendants' Motion to Strike Exhibit List (Dkt. 413 ) is DENIED, but Plaintiff is required to refile an amended exhibit list in accord with this order and pay Defendants' costs and attorney's fees associat ed with the motion to strike and objecting to the new amended exhibit list. Defendants' renewed motions in limine (Dkt. 411 ) are GRANTED in part and DENIED in part as set forth in the Entry. And, finally, Defendants' Motion for Protect ive Order and to Quash Notice of Deposition (Dkt. 402 ) is DENIED, but Defendants are entitled to all costs and attorney's fees associated with preparing for and attending this belated deposition. **SEE ENTRY**. Signed by Judge Tanya Walton Pratt on 3/6/2012. (JD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
THE ESTATE OF TERRY GEE JR.,
Deceased, by Special Administrator,
BLOOMINGTON HOSPITAL and
HEALTH CARE SYSTEM, INC.
JENNIFER ANDERSON, LPN,
TRINA ESTES, LPN,
GWEN SUNKEL, LPN,
ENTRY ON PENDING MOTIONS
This matter comes before the Court on three pending motions: (1) Defendants’ Motion to
Strike Exhibit List (Dkt. 413); (2) Defendants’ renewed motions in limine (Dkt. 411); and (3)
Defendants’ Motion for Protective Order and to Quash Notice of Deposition (Dkt. 402). Each is
addressed in turn.
A. Motion to Strike (Dkt. 413)
The Case Management Plan is unequivocally clear: two weeks before the final
pretrial conference, the parties must file their exhibit lists; then, one week later, the opposing
party must object. (Dkt. 256 at 4-5 and Dkt. 360). This timeline gives the Court ample time to
rule on evidentiary issues prior to or at the final pretrial conference.
Plaintiff initially filed an exhibit list, to which Defendants responded with 43 pages of
objections. (Dkt. 388 and 394). Subsequently, on February 29, 2012, just one week before the
final pretrial conference, Plaintiff, without leave of Court, filed what amounts to a unilateral “do
over” – an “Amended Final Exhibit List” (Dkt. 406). In the process, Plaintiff added roughly 50
exhibits – taking the total up to 241 – and had to renumber the exhibits (starting at 1 instead of
100) in order to avoid running into Medical Defendants’ numbering (which started at 301). It is
worth highlighting that this case is over five years old; simply stated, the Court finds it
absolutely baffling that Plaintiff would add 50 exhibits to his exhibit list just one week before the
final pretrial conference. Needless to say, Plaintiff’s tardy exhibit list caused considerable
headaches and confusion for both the Court and Defendants. Logically, Defendants moved to
strike the exhibit list (Dkt. 413).
Although the motion to strike is well-taken, the Court has resolved to DENY it. The trial
is still over three weeks away, thus limiting the possibility of prejudice. Moreover, a contrary
ruling runs the risk of inflicting pain on Plaintiff merely because his lawyer failed to abide by
deadlines. That said, Plaintiff’s counsel should not be able to ignore deadlines – and create such
a hassle for the Court and its opponent – with impunity.
Therefore, Plaintiff will do the following:
(1) Refile a new exhibit list. This exhibit list will be identical to their Third
Amended Final Exhibit List (Dkt. 345), beginning with No. 100 and ending at
290. With respect to the additional 50 exhibits that Plaintiff seeks to belatedly
add, Plaintiff will begin by numbering those at No. 1000. This way,
Defendants will not need to re-order their prior objections to the previous
exhibit list and Plaintiff’s exhibit numbers will not run into the Defendants’
numbers. Plaintiff’s new exhibit list is due Thursday, March 8, 2012, at 7:00
a.m. eastern time. If the list is not filed by that time, the Court will reverse
course and GRANT Defendants’ motion to strike; and
(2) Plaintiff will reimburse Defendants’ counsel for the costs and attorney’s fees
associated with both (i) the motion to strike and (ii) the cost of objecting to the
B. Renewed Motions in Limine (Dkt. 411)
On February 20, 2012, Magistrate Judge Baker issued a thorough and well-reasoned
opinion (Dkt. 395) addressing the admissibility of Plaintiff’s experts. Following the order, it was
somewhat unclear what issues remained pending in Jail Defendants’ related motion in limine.
Therefore, the Court asked Defendants to file a renewed motion in limine incorporating Judge
Baker’s ruling and addressing any remaining issues. The Court is mindful that Plaintiff has
appealed Judge Baker’s ruling (Dkt. 398). But that motion is not yet ripe; therefore, in this order,
the Court will operate under the assumption that Judge Baker’s ruling will remain intact. If the
Court is obligated to reverse course on an issue, it will do so through its ruling on Plaintiff’s Rule
Jail Defendants have raised 10 issues through their new motion in limine. Each is
addressed in turn.
(1) Legal Conclusions
Jail Defendants seek to bar Plaintiff’s experts from offering legal conclusions. In his
order, Judge Baker ruled that Plaintiff’s experts are not permitted to testify that “Defendants
acted with deliberate indifference,” that “Defendants acted with ‘wanton disregard or perhaps
outright malice,’” that their actions were “reckless” or that the actions were “negligent to
borderline criminal.” (Dkt. 395 at 3-4). Thus, Jail Defendants’ motion is GRANTED to the
extent it encompasses legal conclusions.
(2) Dr. Werner Spitz
In his order, Judge Baker barred Dr. Werner Spitz from testifying. Based on this
ruling, Jail Defendants make a duplicative request, asking the Court to issue a related order in
limine. Although superfluous, the Court will GRANT this request.
(3) What is Obvious to Laypersons
Jail Defendants seek to bar testimony as what would be “obvious” or “apparent” to a nonmedically trained layperson. Again, this request is duplicative of Judge Baker’s order. For the
sake of thoroughness, however, the Court will GRANT the related motion.
(4) Opinion Regarding Credibility of Other Witnesses
Jail Defendants ask the Court to bar expert testimony “purporting to render an opinion on
the credibility of other witnesses.” (Dkt. 412 at 8). Because such testimony would be speculative
and inappropriate, the Court GRANTS this request.
(5) Opinion Concerning Defendants’ State of Mind
Jail Defendants ask the Court to bar Plaintiff’s experts from testifying about what
Defendants “knew.” Such testimony is inescapably based on speculation. Therefore, Jail
Defendants’ motion is GRANTED.
(6) Testimony Regarding Issues No Longer Before the Court
This motion seeks to bar evidence of the alleged wrongdoing of non-parties to this action.
Because these persons are no longer parties, their alleged violations and misconduct are
irrelevant. Jail Defendants’ motion is GRANTED.
(7) Negligence – What Defendants “Should Have Known”
To prevail in this lawsuit, Plaintiff must show “deliberate indifference,” which is more
egregious than garden-variety “negligence.” Specifically, in Farmer v. Brennan, 511 U.S. 825
(1994), the Supreme Court held that a prison official cannot be found liable under a deliberate
indifference standard “unless the official knows of and disregards an excessive risk to inmate
health and safety; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at
837. In other words, there is both an objective and subjective component to this analysis.
Nonetheless, Defendants argue that what they “should have known” is irrelevant, as this is not a
negligence case. Thus, any reference to what a Defendant “should have known” must be barred.
The Court disagrees. Testimony as to what Defendants “should have known” under the
circumstances is, at the very least, relevant to whether there were “facts from which the inference
could be drawn that a substantial risk of harm exists” (i.e. the objective component of the
analysis). Id. Accordingly, Jail Defendants’ related motion is DENIED.
(8) Opinions Not Contained in Reports
According to Plaintiff, he “does not intend to offer expert testimony outside the scope of
the opinions that were expressed in his experts’ reports provided pursuant to Fed. R. Civ. P.
26(a)(2)(B).” (Dkt. 423 at 9). Therefore, Jail Defendants’ motion is GRANTED.
If only it were that simple. Consistent with the above order, Plaintiff’s experts are barred
from testifying about legal conclusions and what would be obvious to laypersons. Accordingly,
Nurse Tennessen is barred from opining about Defendants’ “absolute duty,” that Gee’s condition
was so obvious that a layperson would’ve recognized it, and that Defendants were “deliberately
indifferent.” Thus, Nurse Tennessen is barred from testifying in a manner contemplated by
paragraphs 9, 11, 13, and 14 of her declaration. (Dkt. 412-1).
The same goes for Dr. Jacobsen. Thus, Dr. Jacobsen is barred from testifying in a manner
contemplated by paragraphs 9, 11, 14, and 15 of his declaration; moreover, he is barred from
testifying about what Defendant Johnson “knew,” as contemplated by paragraph 13 of his
declaration. (Dkt. 412-2) But, consistent with the above order, Dr. Jacobsen may be able to
testify about what Defendant Johnson “should have known.”
Finally, the same reasoning applies to Katsaris. First, paragraph 8 of his declaration
relates to non-parties; therefore, that paragraph is irrelevant. Second, paragraph 9 is also
irrelevant, to the extent it applies to non-parties. Third, Katsaris is barred from testifying in a
manner contemplated by paragraphs 12, 14, 16, and 17 – to the extent these paragraphs involve
statements about “absolute duties” and “deliberate indifference.” (Dkt. 412-3). Finally, in
paragraph 11, Katsaris states what Edwards was able to hear and observe. What Edwards
actually heard and observed is speculative; however, what Edwards should have heard and
observed is fair game. Therefore, Jail Defendants’ motion is GRANTED in part and DENIED in
part, in a manner consistent with this subsection.
(9) Love and Companionship
Judge Baker’s ruling granted Plaintiff’s motion to amend his complaint to dismiss
without prejudice the state law medical malpractice claims. Jail Defendants contend that, before
this development, Plaintiff was permitted to seek damages for loss of “love and companionship.”
See Ind. Code § 34-23-1-2(c)(3)(B). But after the dismissal of the state law claims, Jail
Defendants argue, these damages are no longer recoverable.
Plainly stated, this area of the law is murky and confusing. Section 1988 establishes a
three-step process for the selection of appropriate substantive law in a § 1983 action. Bass by
Lewis v. Wallenstein, 769 F.2d 1173, 1188 (7th Cir. 1985). The first step is to determine whether
the federal civil rights law is deficient in furnishing a particular rule. Id. If the federal law is
deficient, “the most closely analogous state law may fill the vacuum only if it is consistent with
the meaning and purpose of constitutional and federal statutory law.” Id. However, if the state
law is inconsistent, “it must be disregarded in favor of the federal common law.” Id.
Section 1983 is silent on the issue of the appropriate measure of damages. Id. Therefore,
the Court must look to the most closely analogous state law – in this case, the Indiana Wrongful
Death Statute – to determine the appropriate measure of damages. The Court may not, however,
“mold the constitutional claim to fit within the parameters of state law.” Id. Indeed, “[t]he proper
approach . . . is not to transform the section 1983 action on behalf of [the decedent] into a
wrongful death action on behalf of those who survived him, but to determine whether state law is
inconsistent with the compensatory and deterrent policies underlying section 1983.” Id. at 118990. In general, “[s]ection 1983 damages are considered to be appropriate as long as those
damages generally effectuate the policies underlying § 1983.” Graham v. Sauk Prairie Police
Comm'n, 915 F.2d 1085, 1104 (7th Cir. 1990) (citations omitted). “The fundamental policies
underlying § 1983 are compensation for, and deterrence of, unconstitutional acts committed
under state law.” Id. (citation omitted).
Under virtually identical circumstances, an Indiana district court has permitted an estate
to recover for loss of love and companionship, as contemplated by Indiana statute. See White v.
Gerardot, 2008 WL 2338307, at *5 (N.D. Ind. June 4, 2008) (“In short, because the Indiana
Wrongful Death Statute expressly provides for the recovery of damages for a decedent’s loss of
love and companionship, and because [defendant] does not assert that the recovery of these
expenses is in any way inconsistent with the purposes of § 1983 . . . White is legally entitled as
the estate’s personal representative to seek damages for the loss of [the decedent’s] love and
companionship.”). Candidly speaking, a few cases – including Russ v. Watts, 414 F.3d 783 (7th
Cir. 2005) – have given the Court some pause. Specifically, Russ held that parents had no
constitutional right to recover for loss of society and companionship of their son. Id. at 787-88;
see also McCurdy v. Dodd, 352 F.3d 820, 830 (3d Cir. 2003) (where officer shot and killed
individual after he refused demands to hold up his hands, father could not recover for deprivation
of his relationship with his son because the official action was not directed at the parent-child
relationship); Claybrook v. Birchwell, 199 F.3d 350, 357-58 (6th Cir. 2000) (adult children
whose father was shot by police officers could bring action under § 1983 only as administrators
of father's estate, not for any collateral injuries suffered by themselves personally). Nonetheless,
Russ dealt with “a constitutional right to recover” certain damages. Gerardot, on the other hand,
dealt with whether certain damages contemplated by state law may be available under § 1983.
The Court finds the present circumstances to be more on-point with Gerardot. Therefore, Jail
Defendants’ related motion is DENIED.
Vera Gee’s Testimony about Dr. Sutter’s Statement
Last, Jail Defendants ask the Court to reconsider its ruling that Vera Gee is permitted to
testify about Dr. Stutter’s statement that “somebody didn’t do their job.” Operating under the
assumption that Dr. Sutter was an employee of Bloomington Hospital, the Court previously ruled
that Dr. Stutter’s statement constituted a Fed. R. Evid. 801(d)(2)(D) admission. Since then,
however, Jail Defendants have furnished the Court with an affidavit establishing that Dr. Sutter
was not an employee of Bloomington Hospital; instead, he was an employee of Internal
Medicine Associates. According to Defendants, Dr. Sutter was not acting as an agent or
employee of a party, as required for a Rule 801(d)(2)(D) admission.
Plaintiff responds by arguing that although Dr. Sutter was not an actual employee or
agent of Dr. Sutter, he “held himself out to be an agent of Bloomington Hospital and this creates
an ostensible agency relationship.” (Dkt. 423 at 16). In other words, Plaintiff asks the Court to
apply the agency principle of “apparent authority” to the Federal Rules of Evidence.
The Court is not persuaded. Importantly, Rule 801(d)(2)(D) makes no mention of
“apparent authority.” Moreover, Plaintiff’s reasoning would create absurd consequences. For
instance, under Plaintiff’s reasoning, an imposter who sneaks into a hospital, dons a white coat
and stethoscope, and masquerades as a doctor of that hospital could make statements that would
automatically be admitted against that hospital, notwithstanding the hearsay rules and despite the
fact that the imposter’s incentives may be diametrically misaligned with the hospital’s. Finally, it
is clear that Dr. Sutter’s statement was a mere after-the-fact commentary on a situation.
Therefore, his statement does not qualify as a “present sense impression” under Rule 803(1), as
Plaintiff initially argued. Having reconsidered its prior order, the Court GRANTS Jail
Defendants’ related motion in limine. Vera Gee is not permitted to testify about Dr. Sutter’s
alleged statement. Of course, Plaintiff will be permitted to cross-examine Dr. Sutter
about whether he made this statement.
C. Motion for Protective Order (Dkt. 402)
In this case, discovery ended in July 2008. Over 40 months later, on February 23, 2012,
Plaintiff’s counsel sent an email to Defendants’ counsel stating his intention to depose Jason
Hochman in Houston, Texas on either March 21 or 28, 2012. On February 29, 2012, Defendants
– citing the long-passed discovery cut-off – filed an Emergency Motion for Protective Order and
To Quash Notice of Deposition (Dkt. 402). Plaintiff counters that this is not a “discovery
deposition.” Instead, it is a deposition de bene esse, which is a fancy way of saying that the
deposition will be “taken from a witness who will likely be unable to attend a scheduled trial.”
BLACK’S LAW DICTIONARY 201 (3d pocket ed.). In other words, Plaintiff wants to take this
deposition to preserve Hochman’s testimony at trial.
It is true, as Defendants emphasize, that the phrase “de bene esse” is not found in the
Federal Rules of Civil Procedure; nor do the Rules explicitly distinguish trial depositions from
discovery depositions. And, notably, some courts have found this silence telling. Specifically, in
Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358 (11th Cir. 2002), the Eleventh Circuit rejected
the notion that classifying a deposition as de bene esse automatically removes it from the grasp
of discovery deadlines. Id. at 1362. Emphasizing the “broad discretion district courts have in
managing their cases,” the Eleventh Circuit ruled that the district court did not abuse its
discretion by granting a protective order against taking a deposition de bene esse in South Africa,
based on the ground that the discovery deadline had passed. Id. at 1360-62. Moreover,
Defendants emphasize that Plaintiff has known of Hochman’s Texas residence for years.
Therefore, his eleventh hour request is too little, too late – and should be denied. See, e.g.,
McDermott v. Liberty Maritime Corp., 2011 WL 2650200, at *3 (E.D.N.Y. July 6, 2011)
(denying de bene esse depositions because “[t]his is not a case in which the necessity to depose
the VA personnel results from the need to preserve testimony that the witnesses would otherwise
have given at trial, based on unforeseen events arising after the close of discovery. . . . They had
sufficient notice during the discovery period that these witnesses were unavailable for trial
purposes . . . . Defendants negligently failed to take the depositions at the appropriate time.”).
This argument is well-taken. Plainly stated, Plaintiff should have figured this issue out
long ago. However, as Plaintiff emphasizes, the Southern District of Indiana has previously
recognized the practical distinction between trial depositions and discovery depositions. As then
District Judge Tinder recognized, “[a]lthough the Federal Rules of Civil Procedure do not clearly
differentiate between [discovery depositions and trial depositions], this distinction is generally
recognized by the courts in this judicial district.” Spangler v. Sears, Roebuck & Co., 138 F.R.D.
122, 124 (S.D. Ind. 1991). Accordingly, “[w]hile discovery is closed under the terms of this
court’s scheduling order, that order does not prevent a party from memorializing a witness’
testimony in order to offer it at trial.” Id. Indeed, trial depositions have been part of most, if not
all, of the trials that this Judge has presided over in the Southern District of Indiana.
Therefore, the Court’s task is to determine whether this deposition is actually being taken
to preserve trial testimony, or if that is merely an after-the-fact excuse to take a belated discovery
deposition. “When a party opposes a trial deposition scheduled after the close of discovery . . .
.[t]he court should consider a variety of factors in making this determination, including the
unavailability of the witness for trial, the potential for prejudice to the opposing party, and
whether the deposing party knew the information the potential witness would testify to prior to
the deposition.” Bamcor LLC v. Jupiter Aluminum Corp., 2010 WL 4955545, at *1 (N.D. Ind.
Nov. 29, 2010). Special emphasis should be placed on the potential for prejudice. Id. (citation
Applying these factors, the Court first recognizes that Hochman is an “unavailable
witness,” since he lives more than 100 miles from the place of trial and therefore beyond the
reach of this Court’s subpoena powers. See Fed. R. Civ. P. 32(a)(4)(B). Second, the risk of unfair
prejudice is negligible, given that Defendants have been on notice that Hochman would be called
as a witness and Plaintiff has secured a Court Reporter’s office with videoconferencing so that
Defendants can participate in the deposition without traveling to Texas. Moreover, it bears
emphasizing that Defendants opted not to take a discovery deposition of Hochman; thus, they
will be no more prejudiced by a deposition de bene esse than they would have been by his live
testimony at trial.
In sum, the Court will permit Plaintiff to take Hochman’s deposition and Defendants’
Emergency Motion for Protective Order and To Quash Notice of Deposition (Dkt. 402) is
DENIED. However, it is true, as Defendants highlight, the Plaintiff has violated the Court’s
scheduling order. Simply stated, Defendants are correct that this situation “was totally
unnecessary,” given that “Plaintiff was in contact with Hochman, in Texas, at least as early as
November of 2008, and obtained an affidavit from him with a Texas notarization attached.”
(Dkt. 429 at 8). Unfortunately, a pattern is beginning to emerge: Plaintiff is needlessly
complicating the lives of both the Court and the Defendants. Accordingly, Defendants are
entitled to all costs and attorney’s fees associated with preparing for and attending this belated
For the reasons set forth above, Defendants’ Motion to Strike Exhibit List (Dkt. 413) is
DENIED, but Plaintiff is required to refile an amended exhibit list in accord with this order and
pay Defendants’ costs and attorney’s fees associated with the motion to strike and objecting to
the new amended exhibit list. Defendants’ renewed motions in limine (Dkt. 411) are GRANTED
in part and DENIED in part as set forth above. And, finally, Defendants’ Motion for Protective
Order and to Quash Notice of Deposition (Dkt. 402) is DENIED, but Defendants are entitled to
all costs and attorney’s fees associated with preparing for and attending this belated deposition
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
Rosemary L. Borek
STEPHENSON MOROW & SEMLER
Lara Kathleen Cutshall
BUNGER & ROBERTSON
Sean W. Drew
DREW LAW OFFICE
Geoffrey Nels Fieger
FIEGER FIEGER KENNEY & JOHNSON
Mary Anne Pelic
BUNGER & ROBERTSON
Ronald J. Semler
STEPHENSON MOROW & SEMLER
James S. Stephenson
STEPHENSON MOROW & SEMLER
Richard A. Waples
WAPLES & HANGER
James L. Whitlatch
BUNGER & ROBERTSON
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