MARTEN et al v. OFFICE OF THE INDIANA ATTORNEY GENERAL et al

Filing 197

ENTRY FOLLOWING FINAL PRETRIAL CONFERENCE - The Entry above details the final pretrial discussions, rulings and directions given pursuant to Trial Rule 16. In addition, the Court made the following rulings. The Martens' Motion to Exclude Opinio ns of H. Bryan Callahan is DENIED (Filing No. 145 ). The Martens' Motion for Separation of Witnesses is GRANTED (Filing No. 175 ). The Martens' Motion in Limine is DENIED in part and GRANTED in part. (Filing No. 162 ). (See Entry.) Signed by Judge Tanya Walton Pratt on 3/22/2017. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JANICE S. MARTEN and CHRISTOPHER
MARTEN,
Plaintiffs,
v.
ANDREW W. SWAIN,
Defendant.

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ENTRY FOLLOWING FINAL PRETRIAL CONFERENCE
This matter was before the Court for a final pretrial conference on March 20, 2017, held at
the Indianapolis Courthouse. Plaintiffs Janice S. Marten and Christopher Marten (“the Martens”)
appeared by counsel Brad A. Catlin and Ronald J. Waicukauski. Defendant Andrew W. Swain
(“Swain”) appeared by counsel Paul O. Mullin and Molly E. Harbison. David Moxley was the
Court Reporter. During this final pretrial conference, the trial of this case was discussed and the
following rulings were made and directions given pursuant to Trial Rule 16.
1.

The five day jury trial of this matter is scheduled to commence on Monday, April

10, 2017, at 9:00 a.m. The trial will be held in the Birch Bayh Federal Building and U.S.
Courthouse, 46 East Ohio Street, Indianapolis, Indiana, Courtroom #344. Doors to the courtroom
will be unlocked at 7:30 a.m. Counsel must report no later than 8:00 a.m. The jury is scheduled
to arrive at 8:30 a.m., and panel selection will begin at 9:00 a.m.
2.

The claim to be tried is the Martens’ claim against Swain for malicious prosecution

under 42 U.S.C. § 1983.
3.

The Court reviewed the parties’ witness lists to determine who will testify and the

subjects of their testimony.

a.

The Martens presented a list of twenty-three named witnesses and discussed

the expected testimony of the potential witnesses (Filing No. 164).

Swain had no

objections to the Martens’ witnesses.
b.

Swain presented a list of thirty-five named witnesses and discussed the

expected testimony of the potential witnesses (Filing No. 186). The Martens filed a written
objection to Bryan Callahan, for reasons explained later in this Entry; the Court overruled
the objection. The Martens orally objected to nine witnesses, and the Court took those
objections under advisement. The Court overruled the objection to Orval “Ollie”
Schierholz, and Schierholz may testify regarding whether Ms. Marten served jury duty in
February or March 2008. Swain withdrew Brian D. Salwowski from his witness list and
orally moved for permission to designate in his place, Gary Secrest, who has been
identified on previous witness lists. The Court granted the oral motion to amend the
witness list. Because of rulings on summary judgment, Swain may be able to further reduce
his witness list. Swain is ORDERED to file an Amended Witness List by no later than
Friday, March 24, 2017. Any objections that the Martens may have to the Amended
Witness List must be filed by no later than Friday, March 31, 2017.
c.

The Martens filed a Motion to Exclude Opinions of H. Bryan Callahan

(Filing No. 145), who is Swain’s expert witness to counter the Martens’ damages expert
witness Bruce L. Jaffee. The admissibility of expert testimony is governed by Federal Rule
of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). To be
admissible, expert testimony must be both relevant and reliable. Courts look at whether
(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

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scientifically reliable; and (3) the testimony assists the trier of fact to understand the
evidence or to determine a fact in issue. Ervin v. Johnson & Johnson, Inc., 492 F.3d 901,
904 (7th Cir. 2007). The Martens’ primary argument is that Callahan’s expert testimony
consists of legal conclusions, and expert witnesses may not provide testimony regarding
legal conclusions. See Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d
557, 564 (7th Cir. 2003). The Martens also argue that Callahan’s testimony is selfcontradictory and therefore unreliable.
Swain responds that Callahan’s testimony does not consist of legal conclusions,
pointing out that some of Callahan’s deposition testimony simply shows his understanding
of various legal standards. His deposition testimony regarding his understanding of legal
standards does not convert his expert testimony about damages into an expert opinion
regarding legal conclusions. Swain also responds that Callahan’s testimony is not selfcontradictory and that the Martens’ attempt to show contradictions is based on selective
quotations and taking testimony out of context.
Upon review of the briefing and exhibits for the Motion to Exclude, the Court
determines that Callahan’s anticipated testimony does not consist of impermissible legal
conclusions, it appears to be reliable, and it is relevant to the issue of damages. It appears
that Callahan has the training, education, and experience to serve as an expert witness in
this matter regarding damages. His opinions seem to be limited to a review and analysis
of the expert opinion of the Martens’ damages expert witness. The concerns raised by the
Martens are each adequately addressed by “the traditional and appropriate means of
attacking shaky but admissible evidence,” which are “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof.”

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Daubert, 509 U.S. at 596. Therefore, the Court DENIES the Martens’ Motion to Exclude
Opinions of H. Bryan Callahan (Filing No. 145).
d.

To avoid calling non-party witnesses twice, the parties are instructed to

conduct direct and cross-examinations the first time a non-party witness is called. The
Court discourages the parties from calling cumulative witnesses and presenting cumulative
testimony.
4.

The Court reviewed the parties’ exhibit lists and made the following rulings:
a.

The Martens’ Exhibit List (Filing No. 167) designated one hundred forty-

nine exhibits. Swain did not file any written objections to the Martens’ exhibits.
b.

Swain’s Exhibit List (Filing No. 169) designated ninety-five exhibits.

Exhibit 245 contained numerous transcripts of depositions and exhibits to those depositions
without separately identifying each document by an individual exhibit number.
Additionally, Exhibit 247 contained numerous tax and business documents without
separately identifying each document by an individual exhibit number. At the final pretrial
conference, Swain represented to the Court that he had reorganized his exhibit binder to
correct this non-compliance with the Court’s directions for identifying exhibits. However,
the Exhibit List on the docket is non-complying and now does not correlate with his exhibit
binder. Therefore, the Court ORDERS Swain to file an Amended Exhibit List by no later
than Friday, March 24, 2017. The Martens filed written objections to Swain’s exhibits at
Filing No. 177. The Martens are granted leave to refile any objections to Swain’s Amended
Exhibit List by no later than Friday, March 31, 2017.
c.

The parties filed a Stipulated Exhibit List (Filing No. 172), designating

certain exhibits as authentic public records and other exhibits as authentic. The parties are

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to confer and discuss whether they can agree on the admissibility or authenticity of any
additional exhibits to avoid calling witnesses solely for foundational purposes.
d.

The parties are to provide three (3) copies of their exhibits to the Courtroom

Deputy Clerk by Friday, April 7, 2017, at 12:00 p.m.
5.

The Court discussed jury instructions and the joint issue instruction:
a.

The Court will use its own preliminary jury instructions, which will be

emailed to counsel by Wednesday, April 5, 2017. Counsel will have until 12:00 p.m. on
Friday, April 7, 2017, to file any objections with the Court.
b.

The parties filed Joint Proposed Final Jury Instructions and a joint issue

instruction (Filing No. 174). The parties were ORDERED to refile the jury instructions
by no later than Friday, March 31, 2017 with an “Instruction Number” at the top of each
instruction and with all references to Rick Albrecht as a defendant removed.
c.

The Court will settle final jury instructions on the last day of trial after the

close of evidence.
d.

The parties failed to submit a proposed verdict form.

The Court

ORDERED the parties to file a proposed verdict form by no later than Friday, March 31,
2017.
6.

The Court discussed voir dire, the jury, and opening statements:
a.

Jury selection will commence on Monday, April 10, 2017, at 9:00 a.m.

Counsel may obtain a copy of the responses to juror questionnaires in person at the
Indianapolis Courthouse from the Courtroom Deputy Clerk on Friday, April 7, 2017, at
12:00 p.m. The questionnaires must be returned to the Courtroom Deputy Clerk once a
jury is seated and sworn.

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b.

A panel of twenty-three (23) prospective jurors will be called, and a jury of

eight (8) and no alternates will be empaneled. The Court will examine the panel with its
standard voir dire questions and may incorporate questions submitted by counsel, after
which counsel for the parties will have up to fifteen (15) minutes per side for any followup questions. Challenges for cause will be made at the bench. After challenges for cause
are resolved, the parties will each have three (3) peremptory challenges, which shall be
exercised simultaneously and in writing. There will be no backstriking.
c.

The Court informed the parties that, during the trial, it will allow jurors to

submit written questions for witnesses to the Court, following the procedures endorsed by
the Seventh Circuit Bar Association.
d.

Each side will have twenty-five (25) minutes for opening statements. The

amount of time allotted for closing arguments will be determined at the close of evidence.
e.

Before Wednesday, April 5, 2017, at 12:00 p.m., counsel shall advise and

share with one another any demonstrative exhibits they intend to use. Any objections to
demonstrative exhibits must be filed by 12:00 p.m. on Friday, April 7, 2017, so that any
objections may be resolved before the opening statements.
7.

The Martens filed a written Motion for Separation of Witnesses (Filing No. 175).

The Court GRANTED the Motion. The parties are to instruct their witnesses to report to Room
#346. The parties also are to instruct their witnesses to not discuss their testimony either before
or after it is given.
8.

The Court discussed the parties’ efforts to reach a settlement in this matter. The

parties represented that settlement discussions are ongoing. The parties are encouraged to continue
settlement discussions and are directed to promptly notify the Court if a settlement is reached.

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9.

The parties orally notified the Court of their intent to use the Court’s VEPS system

during trial. Counsel are instructed to schedule training with the Courtroom Deputy Clerk. Both
parties intend to use IT personnel to assist with their exhibit presentations. Counsel shall make
these arrangements through the Courtroom Deputy Clerk.
10.

The Court and parties discussed the Martens’ Motion in Limine (Filing No. 162).

The Martens request that the Court exclude evidence and argument (1) that the Martens are or were
“sovereign citizens” or “tax protesters;” (2) concerning any investigation by the Indiana Secretary
of State of the Martens regarding securities; and (3) concerning other lawsuits against Mr. Marten.
The Martens assert that these categories of evidence are not relevant to the issues in this matter,
and even if they were relevant, the probative value is outweighed by the danger of unfair prejudice,
undue delay, confusion of the issues, and the potential to mislead the jury. The Martens further
argue that this evidence is prohibited under Federal Rule of Evidence 404(b)—“Evidence of a
crime, wrong, or other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character.”
Swain responds that these categories of evidence are directly relevant to the issues in this
case regarding probable cause, malice, pursuing criminal charges against the Martens, and the
opportunity, motive, intent, and plan surrounding much of the conduct of the Martens throughout
the investigation. Swain asserts that this evidence also relates directly to damages, especially
where the Martens are claiming reputational harm. Swain points to the language of Federal Rule
of Evidence 404(b)(2) which allows this type of evidence “for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.”

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The Court notes that it excludes evidence on a motion in limine only if the evidence clearly
is not admissible for any purpose. See Hawthorne Partners v. AT&T Technologies, Inc., 831 F.
Supp. 1398, 1400 (N.D. Ill. 1993). Unless evidence meets this exacting standard, evidentiary
rulings must be deferred until trial so questions of foundation, relevancy, and prejudice may be
resolved in context. Id. at 1400–01. Moreover, denial of a motion in limine does not necessarily
mean that all evidence contemplated by the motion is admissible; rather, it only means that, at the
pretrial stage, the Court is unable to determine whether the evidence should be excluded. Id. at
1401.
After reviewing the parties’ arguments and exhibits, the Court determines that there may
be some circumstances related to the issues involved in the malicious prosecution claim and
damages where the challenged evidence may be admissible for certain purposes, not to prove the
Martens’ character in order to show that on a particular occasion the Martens acted in accordance
with that character. For this reason, the Court DENIES the Martens’ Motion in Limine (Filing
No. 162) with respect to the investigation by the Indiana Secretary of State of the Martens
regarding securities, and concerning other lawsuits against Mr. Marten. However, because of the
potential for unfair prejudice and confusion of issues, the Court GRANTS the Motion in Limine
with respect to use of the labels “sovereign citizen” and “tax protester” during trial. Further, Swain
may not call witnesses for the sole purpose of explaining the ideology behind the tax protestor
movement and sovereign citizens. An order in limine is not a final, appealable order. During the
course of the trial, if the parties believe that evidence being offered is inadmissible or irrelevant,
counsel may approach the bench and request a hearing outside the presence of the jury.
11.

Counsel should review Judge Pratt’s “Courtroom Procedures and Trial Practice”

(Filing No. 27) before the start of the trial.

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CONCLUSION
The Entry above details the final pretrial discussions, rulings and directions given pursuant
to Trial Rule 16. In addition, the Court made the following rulings. The Martens’ Motion to
Exclude Opinions of H. Bryan Callahan is DENIED (Filing No. 145). The Martens’ Motion for
Separation of Witnesses is GRANTED (Filing No. 175). The Martens’ Motion in Limine is
DENIED in part and GRANTED in part. (Filing No. 162).

SO ORDERED.

Date: 3/22/2017

DISTRIBUTION:
Brad A. Catlin
PRICE WAICUKAUSKI JOVEN & CAITLIN, LLC
[e-mail]
Ronald J. Waicukauski
PRICE WAICUKAUSKI JOVEN & CAITLIN, LLC
[e-mail]
Paul Owen Mullin
LEWIS & WILKINS LLP
[e-mail]
Molly Elizabeth Harbison
LEWIS & WILKINS LLP
[e-mail]

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