TODERO v. TOWN OF GREENWOOD et al

Filing 314

ORDER ON MOTIONS IN LIMINE - The parties have filed a combined forty-five motions in limine. A table summarizing the motions and rulings is attached as Appendix A. Consistent with the Court's instructions at the final pretrial conference, counsel shall raise reasonably foreseeable evidentiary issues in advance outside the presence of the jury--generally before or after the trial day, over lunch, or at a break. That includes situations when a party believes that the evidence at tri al justifies a modification to this order. To avoid wasting the jury's time, counsel must make every effort to avoid raising reasonably foreseeable issues when they would require a sidebar or recess, which will be allowed only in extenuating circumstances. The parties' motions in limine are GRANTED in part and DENIED in part in accordance with this order. Dkt. 268 ; dkt. 270 ; dkt. 271 . As with all orders in limine, this order is preliminary and "subject to change when the case unfolds." Luce v. United States, 469 U.S. 38, 41 (1984). No party shall reference or attempt to elicit evidence that has been provisionally excluded by this order without first seeking permission from the Court outside the presence of the jury. Each party SHALL ENSURE its witnesses' compliance with this order. Consistent with the Court's instructions at the final pretrial conference, counsel shall raise reasonably foreseeable evidentiary issues in advance outsid e the presence of the jury--generally before or after the trial day, over lunch, or at a break. That includes situations when a party believes that the evidence at trial justifies a modification to this order. To avoid wasting the jury's tim e, counsel must make every effort to avoid raising issues when they would require a sidebar or recess, which will be allowed only in extenuating circumstances (SEE ORDER FOR ADDITIONAL INFORMATION AND INSTRUCTIONS). Signed by Judge James Patrick Hanlon on 10/7/2021. (DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TERESA TODERO as Special
Administrator of the ESTATE OF
CHARLES TODERO,,

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Plaintiff,
v.
BRIAN BLACKWELL,
RENEE ELLIOT,
ELIZABETH LAUT,
CITY OF GREENWOOD,
Defendants.

No. 1:17-cv-01698-JPH-MJD

ORDER ON MOTIONS IN LIMINE
The parties have filed a combined forty-five motions in limine. A table
summarizing the motions and rulings is attached as Appendix A. Consistent
with the Court's instructions at the final pretrial conference, counsel shall raise
reasonably foreseeable evidentiary issues in advance outside the presence of
the jury—generally before or after the trial day, over lunch, or at a break. That
includes situations when a party believes that the evidence at trial justifies a
modification to this order. To avoid wasting the jury's time, counsel must
make every effort to avoid raising reasonably foreseeable issues when they
would require a sidebar or recess, which will be allowed only in extenuating
circumstances.

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I.

Applicable Law

"Motions in limine are well-established devices that streamline trials and
settle evidentiary disputes in advance, so that trials are not interrupted midcourse for the consideration of lengthy and complex evidentiary issues."
United States v. Tokash, 282 F.3d 962, 968 (7th Cir. 2002). Still, orders in
limine are preliminary and "subject to change when the case unfolds" because
actual testimony may differ from a pretrial proffer. Luce v. United States, 469
U.S. 38, 41 (1984). A trial judge does not bind himself by ruling on a motion in
limine and "may always change his mind during the course of a trial." Ohler v.
United States, 529 U.S. 753, 758 n.3 (2000).
II.

Analysis

A. Ms. Todero's Motions in Limine
1.

Undisclosed expert opinions from Dr. Hartman

Ms. Todero argues that Dr. Hartman should not be allowed to present
expert testimony at trial because he was not disclosed as an expert under
Federal Rule of Civil Procedure 26. Dkt. 271 at 7–12. Greenwood Defendants
respond that Dr. Hartman will testify as a fact witness, dkt. 284 at 1–2, and
Officer Blackwell responds that Dr. Hartman should be allowed to offer
opinions based "on facts or data in the case that [he] has personally observed,"
dkt. 285 at 1–4.
For Dr. Hartman to testify as an expert, Defendants were required to
disclose "the subject matter on which the witness is expected to present"
opinion testimony. Fed. R. Civ. P. 26(a)(2)(C). Officer Blackwell argues that
"Defendants' initial disclosures essentially provided this information," but his
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disclosure said only that Dr. Hartman "has knowledge of treatment rendered to
Charles Todero and his physical condition while a patient at St. Francis
Hospital." Dkt. 272-2 at 4. Greenwood Defendants' disclosure similarly said
only that Dr. Hartman "[p]ossesses information regarding Todero's medical
condition and treatment at St. Francis." Dkt. 272-3 at 3. These fact-witness
disclosures—the only disclosures designated by Defendants for Dr. Hartman—
are "plainly inadequate" to designate Dr. Hartman as an expert witness. Karum
Holdings LLC v. Lowe's Cos., Inc., 895 F.3d 944, 951 (7th Cir. 2018). "[N]othing
in the . . . disclosure[s] stated or suggested [that Dr. Hartman] was an expert
witness." Id. The "duty to disclose a witness as an expert is not excused when
a witness who will testify as a fact witness and as an expert witness is
disclosed as a fact witness." Id. (emphases in original).
Dr. Hartman's expert testimony is therefore "subject to automatic
exclusion under Rule 37(c)(1)." Id. at 952. Officer Blackwell nevertheless
argues that any failure to disclose was "justified or harmless" because Dr.
Hartman "is not expected to offer any opinions which he did not share with
Plaintiff in his deposition." Dkt. 285 at 3. But deficient disclosures are not
cured "with later deposition testimony." Ciomber v. Cooperative Plus, Inc., 527
F.3d 635, 642 (7th Cir. 2008). Indeed, Ms. Todero argues that she relied on
Defendants' fact-witness disclosures "in electing not to pursue vigorous crossexamination of [ ] opinions at the deposition" and in deciding not to challenge

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any opinions with a Daubert motion. 1 Dkt. 271 at 8; see Karum Holdings, 895
F.3d at 952 (affirming the exclusion of undisclosed opinions when the opposing
party was familiar with the witness but "had no reason to take discovery on his
qualification and expertise" and lost the opportunity to challenge the opinions
under Daubert).
Ms. Todero's motion is therefore GRANTED; Dr. Hartman may testify as
a fact witness but may not offer opinions under Federal Rules of Evidence
702, 703, or 705. However, this order does not bar "ordinary, percipient
observations" that Dr. Hartman made during his work as a health care
professional. Patterson v. Baker, 990 F.3d 1082, 1086 (7th Cir. 2021)
(expressing skepticism that the "limited and commonsense" observation that a
beating "could possibly result in bruising" was an expert opinion requiring
disclosure). The parties shall confer to address whether any of Dr. Hartman's
testimony is expected to remain at issue under this ruling.
2.

Undisclosed witnesses

By agreement of the parties, no party may call fact witnesses not
disclosed by that party. See dkt. 271 at 12–14; dkt. 284 at 3; dkt. 285 at 4.
3.

Defendants' financial ability to pay a judgment

By agreement of the parties, the parties may not reference Defendants'
financial ability to pay a judgment. See dkt. 271 at 14–15; dkt. 284 at 3; dkt.
285 at 4.

Indeed, Ms. Todero has identified several of Dr. Hartman's opinions—including about
cause of death, drug use, and Taser effects—that have not had their reliability tested
through Daubert briefing. Dkt. 271 at 9–12.
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4.

Location of Ms. Todero's attorneys

No reference regarding where any counsel practice or reside may be made
in front of the jury. See dkt. 271 at 15. That information is not relevant to any
issue that the jury must decide.
5.

Defendants' employment history

Ms. Todero argues that Defendants should be barred from introducing
evidence "of their 'good character' by reference to prior work-related
commendations, awards, complimentary history, or performance reviews."
Dkt. 271 at 15–16. Greenwood Defendants respond that some "brief, general
background" should be allowed, dkt. 284 at 4, and Officer Blackwell responds
that it would be "unfair and extremely prejudicial" to allow evidence of negative
events but not positive ones, dkt. 285 at 5.
Because the jury must evaluate the officers' credibility, they may testify
generally about their personal background; education and work experience,
including length of service; positions held, and changes in rank. See Rodriguez
v. Scillia, 193 F.3d 913, 919 (7th Cir. 1999). They may not, however, testify
about commendations, awards, or similar honors, because any probative value
of that evidence would be substantially outweighed by the risk of unfair
prejudice, confusing the issues, and wasting time. Fed. R. Evid. 403; See
White v. Gerardot, No. 1:05-cv-382, 2008 WL 4724000 at *1 (N.D. Ind. Oct. 24,
2008).

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6.

Employment or criminal consequences for Defendants

By agreement of the parties, Defendants may not reference any potential
employment or criminal consequences for Defendants. Dkt. 271 at 17; dkt.
284 at 5; dkt. 285 at 5.
7.

Jurors' pecuniary interests

By agreement of the parties, Defendants may not reference jurors'
potential pecuniary interests. Dkt. 271 at 17–18; dkt. 284 at 5; dkt. 285 at 5.
8.

Duplicative witness examinations

As ordered at the final pretrial conference, this motion is DENIED; the
Court will not require Defendants to "designate one primary attorney per
witness per cross-examination." Dkt. 271 at 18–19. Plaintiffs may object as
needed at trial to questions that have been asked and answered or that
otherwise would elicit cumulative testimony.
9.

Former claims or former defendants

By agreement of the parties, Defendants may not reference claims or
defendants that have been dismissed. Dkt. 271 at 19–20; dkt. 284 at 6; dkt.
285 at 6.
10.

Dr. Kroll's opinions about electrocution

Ms. Todero argues that Dr. Kroll's opinion ruling out electrocution as a
cause of death should be excluded because "electrocution . . . is not an issue
[in] this case." Dkt. 271 at 20–22. Greenwood Defendants respond that the
effects of electricity from a Taser are at issue, and that Dr. Kroll's testimony is
relevant to those issues. Dkt. 284 at 6–8.

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While Ms. Todero might not argue that electrocution specifically caused
Mr. Todero's death, causation and the effects of Tasers are central issues in
this trial. Therefore, Dr. Kroll's testimony on those topics, including his
excluding electrocution as the cause of death, is relevant and helpful to the
jury. This motion is therefore DENIED.
11.

Dr. Kroll's opinions about the safety of Tasers

Ms. Todero argues that Dr. Kroll should be barred from "offering any
opinions or testimony about the general safety of Tasers." Dkt. 271 at 22–23.
Greenwood Defendants respond that Dr. Kroll will provide background
information about Tasers in order to explain how safe they may be. Because
Taser discharges, their effects on Mr. Todero, and their reasonableness are
central issues in this case, Dr. Kroll's testimony about Tasers is relevant and
helpful to the jury. This motion is thus DENIED.
12.

Mr. Todero's heart attack at age sixteen

Ms. Todero seeks to exclude testimony related to a drug overdose and
related heart attack that Mr. Todero may have suffered when he was sixteen,
about fourteen years before his death. Dkt. 271 at 24–26. She argues that it's
irrelevant and that any relevance is substantially outweighed by the danger of
unfair prejudice. Id. Greenwood Defendants respond that the heart attack is
relevant to explain Mr. Todero's cause of death and to support drug use as the
cause of Excited Delirium Syndrome. Dkt. 284 at 10–11. Officer Blackwell
adds that the prior heart attack is relevant to Mr. Todero's life expectancy for
damages calculations. Dkt. 285 at 6–7.

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Because there is no designated expert testimony about how a prior heart
attack might affect the results of being tased or how it might affect life
expectancy, argument advancing such theories would be speculative.
Moreover, the evidence identified by Defendants regarding the alleged heart
attack—testimony of family members who said they knew it happened—is
meager, vague, and uncorroborated by medical records.
For these reasons, any probative value a prior heart attack and related
drug use are substantially outweighed by the risks of unfair prejudice,
confusing the issues, and misleading the jury. Fed. R. Evid. 403; cf. Lewis v.
City of Chicago Police Dept., 590 F.3d 427, 443 (7th Cir. 2009).
13.

Mr. Todero's being under the influence of spice or some
other undetected drug at the time of the incident

Ms. Todero has filed a motion in limine to exclude evidence that Mr.
Todero may have been under the influence of synthetic marijuana (spice) or
some other undetected drug at the time of the incident. 2 Dkt. 271 at 26–28.
She contends that the only evidence of drug use is a hospital toxicology screen
that was negative for all drugs except marijuana, so any relevance to potential
drug use at the time is substantially outweighed by the danger of unfair
prejudice. Defendants respond that Mr. Todero's actions were consistent with
drug use, and that expert testimony also supports that he was under the
influence of synthetic marijuana. Dkt. 284 at 12–16; dkt. 285 at 7.

Separately, Ms. Todero's motion in limine number 14 seeks to exclude evidence that
Mr. Todero tested positive for marijuana on the day of the incident.

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The only evidence identified by Defendants to establish that Mr. Todero
was under the influence of drugs at the time is the hospital toxicology report.
While Mr. Todero tested positive for marijuana, no other drugs were detected,
so any testimony that he may have been under the influence of other drugs
would be mere speculation. The fact that the screen does not test for certain
drugs, such as synthetic marijuana, is not evidence that Mr. Todero may have
been under their influence. Defendants also rely on Dr. Vilke's opinion that
Mr. Todero was suffering from Excited Delirium Syndrome, which was
consistent with synthetic marijuana (spice) intoxication. But the Court has
since excluded that opinion as resting on only speculation, and the same
analysis applies here. Dkt. 310 at 16–17.
In their response, Defendants separately argue that individual officers
may testify that Mr. Todero appeared to be under the influence of drugs. Dkt.
284 at 15–16; dkt. 285 at 7. While such testimony—if based on an officer's
training and experience and personal observations of Mr. Todero—may be
admissible, a more detailed evidentiary proffer and opportunity for Plaintiff to
respond would be required. Before eliciting such testimony at trial, Defendants
therefore must raise the issue with the Court outside the presence of the jury.
Ms. Todero's motion is GRANTED; Defendants may not elicit evidence or
argue that Mr. Todero was under the influence of any undetected drug at the
time of the incident.

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14.

Cannabinoids in Mr. Todero's system at the time of the
incident

Ms. Todero argues that evidence that Mr. Todero tested positive for
marijuana at the hospital after the incident should be excluded as irrelevant.
Dkt. 271 at 29–30. Greenwood Defendants argue that the positive test for
marijuana is relevant because it makes it more likely that Mr. Todero would
use synthetic marijuana, which in turn is relevant to Dr. Vilke's testimony
about Excited Delirium Syndrome. But regardless of whether that would be
impermissible propensity evidence, it cannot be relevant to Dr. Vilke's
testimony because his opinion that prior drug use, including spice use, is
consistent with excited delirium syndrome has since been excluded. Dkt. 310
at 16–17. Officer Blackwell does not argue that the positive result for
marijuana is relevant, but only that there is no longer a risk of unfair prejudice
because marijuana is no longer stigmatized. Dkt. 285 at 7.
Plaintiff's motion in limine on this issue is therefore GRANTED because
Defendants have not shown that the positive result for marijuana is relevant,
and because any probative value would be substantially outweighed by the
danger of unfair prejudice and confusing the issues. Fed. R. Evid. 401, 403.
15.

Mr. Todero's prior acts and past conduct

Ms. Todero seeks to exclude evidence of several categories of Mr. Todero's
alleged prior bad acts or past conduct. Dkt. 271 at 30–39.

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a. Limiting evidence to what the officers knew at the time
of the incident
This motion in limine substantially overlaps with Ms. Todero's motion in
limine number 23, so they must be read together on this issue.
Ms. Todero argues that Fourth Amendment reasonableness is based on
what the officers knew at the time of the incident, so "the admissible evidence
at trial should begin and end with what Blackwell knew when he encountered
Charlie Todero on May 29, 2016." Dkt. 271 at 31. Officer Blackwell responds
that the events leading up to the incident are relevant to Mr. Todero's mental
state and medical conditions, which are relevant to causation. Dkt. 285 at 7–8.
As to Defendants' constitutional liability, "[t]he reasonableness of the
force used depends on the totality of the facts and circumstances known to the
officer at the time the force is applied." Abbott v. Sangamon Cty., Ill., 705 F.3d
706, 724 (7th Cir. 2013). The facts leading up to the incident are therefore
relevant to liability only to the extent that the officers knew them.
The questions of Mr. Todero's health and medical causation are more
complex. Officer Blackwell argues that Mr. Todero's "actions and behavior in
the 24 hours preceding his interaction with Blackwell relates to, and helps
shed light on, his medical conditions." Dkt. 285 at 8. However, Officer
Blackwell has not explained how the facts from those 24 hours are relevant to
medical causation, except apparent speculation that being detained on a
psychiatric hold and drinking vodka are relevant to that question. Id. The
Court therefore GRANTS this motion in line with the Court's ruling on Ms.
Todero's motion in limine number 23.
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b. Arrests, charges, and other police contact
By agreement of the parties, Defendants may not reference any prior
arrests, charges, or police contact that Mr. Todero may have had. See dkt. 271
at 34–35; dkt. 285 at 8–9.
However, as discussed at the final pretrial conference, the parties agreed
that some explanation of how Officer Blackwell recognized Mr. Todero may be
necessary. The parties shall confer in an attempt to reach a stipulation or
stipulated questions to establish that Mr. Blackwell knew Mr. Todero from
prior interactions.
c. Substance abuse
Ms. Todero argues that any evidence of prior substance abuse by Mr.
Todero should be excluded because any relevance is substantially outweighed
by the danger of unfair prejudice. Dkt. 271 at 36–37. At the final pretrial
conference, Officer Blackwell argued that this evidence is at least relevant to
what Mr. Todero's life expectancy would have been.
Defendants have not identified any relevance of this evidence as to
liability. However, prior drug use—including medical treatment resulting from
drug use—and prior consistent alcohol use may be relevant to damages if it is
supported by admissible evidence that is not remote or speculative. See Cobige
v. City of Chicago, Ill., 651 F.3d 780, 785 (7th Cir. 2011). In the motion in
limine briefing, though, Defendants have not identified the evidence on these
topics that they would seek to introduce. See dkt. 285 at 8–9. The Court
therefore cannot fully evaluate the probative value or the risks of unfair
prejudice and confusing the issues. For these reasons and to ensure the
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orderly presentation of evidence at trial, this motion is GRANTED at this stage
to the extent that Defendants must first raise the evidence that they intend to
elicit outside the hearing of the jury.
d. Disputes with Ms. Todero
Ms. Todero argues that evidence of disputes between her and Mr. Todero
would be "highly inflammatory" and therefore should be excluded under
Federal Rule of Evidence 403. Dkt. 271 at 38–39. Officer Blackwell argues
that the evidence is relevant because Ms. Todero is seeking damages for the
loss of her relationship with Mr. Todero. Dkt. 285 at 9.
As long as Ms. Todero seeks damages for her loss of relationship with Mr.
Todero, evidence of the nature and quality of that relationship is relevant and
highly probative. See Ind. Code § 34-23-1-2 (allowing damages for "[l]oss of the
adult person's love and companionship"). Indeed, Ms. Todero does not explain
how a jury should be expected to evaluate these damages without hearing
evidence of the nature of the relationship. To the extent that some evidence
may be inflammatory or prejudicial, that evidence still goes directly to the
measure of Ms. Todero's damages. See Fed. R. Evid. 401; United States v.
Hanna, 630 F.3d 505, 511 (7th Cir. 2010) ("Because most relevant evidence is,
by its very nature, prejudicial, we have emphasized that evidence must be
unfairly prejudicial to require exclusion."); Cobige, 651 F.3d at 785 (Evidence of
time in prison and drug addiction was relevant to damages and should not
have been excluded under Rule 403.). The relevance is therefore not
substantially outweighed by the risk of unfair prejudice. See Fed. R. Evid. 403.
This motion in limine is DENIED.
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16.

Criminal history of Mr. Todero's family members

Ms. Todero seeks to exclude evidence of Mr. Todero's family members'
"criminal convictions, arrests, and prior bad acts." Dkt. 271 at 39–41. She
contends that Defendants failed to disclose prior convictions in response to
interrogatory requests. Id. Defendants respond that impeachment evidence
need not be disclosed before trial and that the Federal Rules of Evidence allow
the use of prior convictions in certain circumstances.
The admissibility of witnesses' prior convictions is governed by Federal
Rule of Evidence 609. Ms. Todero cites no authority to support her contention
that convictions must be disclosed in response to interrogatory requests before
they can be admissible under that rule. See dkt. 271 at 39–40. The motion in
limine is therefore DENIED to the extent that parties may impeach witnesses
under Rule 609's provisions.
Ms. Todero also argues that prior bad act evidence should be excluded
under Federal Rule of Evidence 404(b). However, other than passing references
to drug use and arrests, the parties have not identified the specific evidence at
issue. See dkt. 271 at 40–41; dkt. 284 at 17. Because of the danger of unfair
prejudice and misleading the jury, the motion is therefore GRANTED. If any
party intends to impeach or cross-examine Mr. Todero's family members with
prior "misbehavior" other than a criminal conviction admissible under Rule
609, they must first raise the issue with the Court outside the presence of the
jury.

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17.

Theory that Mr. Todero was suicidal

Ms. Todero argues that speculation that Mr. Todero was suicidal should
be excluded. Dkt. 271 at 41–42. Officer Blackwell responds only that the
description of Mr. Todero as suicidal comes from two 911 callers and is
relevant to explain why Officer Blackwell was called to the scene and what he
had been told to expect there. Dkt. 285 at 10.
Because the 911 calls have been designated as evidence and are relevant
to what Mr. Blackwell knew, the motion in limine is DENIED as to those calls
and any actions that Mr. Blackwell took that were affected by what he learned
from those calls. Abbott, 705 F.3d at 724 (explaining that the totality of the
circumstances known to the officer is relevant in determining reasonableness).
The motion in limine is GRANTED as unopposed as to any speculation from
Ms. Todero and as to any argument that Mr. Todero did in fact commit suicide.
18.

Ms. Todero's statements about conflict between her and Mr.
Todero

Ms. Todero argues that her prior statements about her relationship with
Mr. Todero should be excluded as unfairly prejudicial. Dkt. 271 at 43–44.
Defendants respond that the evidence is directly relevant to her claim for
damages based on her relationship with Mr. Todero. Dkt. 284 at 18; dkt. 285
at 10.
As explained above in the ruling on motion in limine number 15(d), as
long as Ms. Todero seeks damages for her loss of relationship with Mr. Todero,
evidence of the nature and quality of that relationship is relevant and highly
probative. Again, Ms. Todero does not explain how a jury should be expected
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to evaluate these damages without hearing evidence of the nature of the
relationship. To the extent that some evidence may be inflammatory or
prejudicial, that evidence still goes directly to the measure of Ms. Todero's
damages. See Fed. R. Evid. 401. The relevance is therefore not substantially
outweighed by the risk of unfair prejudice. See Fed. R. Evid. 403. This motion
in limine is DENIED.
19.

Statements from Mr. Todero's family about his cause of
death

Ms. Todero argues that opinions from Mr. Todero's family members
about his cause of death are inadmissible speculation. Dkt. 271 at 44–46.
Officer Blackwell responds that evidence of their cause-of-death opinions is
relevant to their credibility. Dkt. 284–85. No party, however, argues that any
of Mr. Todero's family members observed the incident or have reliable, personal
knowledge about Mr. Todero's cause of death. See Fed. R. Evid. 701. The
motion in limine is therefore GRANTED.
20.

Dr. Vilke's opinion about undetected drug intoxication
causing Excited Delirium Syndrome

The Court ruled on this issue in its September 30, 2021 Daubert order.
Dkt. 310.
21.

Dr. Vilke's opinions as a substitute witness for Dr. Vilke

The Court ruled on this issue in its September 30, 2021 Daubert order.
Dkt. 310.
22.

Officer Blackwell's admissions

Ms. Todero argues that she should be permitted "to use [Officer]
Blackwell's admissions against Defendants at trial." Dkt. 271 at 54–56.
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Defendants do not argue that the admissions cannot be used. Greenwood
Defendants argue that Officer Blackwell's admissions do not bind them, and
Officer Blackwell argues that he stands by the admissions, but should be
allowed to explain them.
The parties shall meet and confer before trial on how the admissions
are to be introduced and what instructions for the jury would be appropriate
on how the admissions are to be used. See United Fire & Casualty Co. v. Prate
Roofing & Installations, LLC, 7 F.4th 573, 584 (7th Cir. 2021) (addressing Rule
36 admissions, including which parties they bind).
23.

Mr. Todero's activities prior to the incident

Ms. Todero argues that Defendants should be barred from using evidence
about Mr. Todero's activities before the incident "in support of their defense of
Plaintiff's constitutional and state law claims." Dkt. 271 at 56–61. Greenwood
Defendants respond that the evidence is relevant and admissible not as
information within the officers' knowledge, but to inform the expert testimony
about Excited Delirium Syndrome. Dkt. 284 at 28–33.
This motion in limine is GRANTED in part. Greenwood Defendants have
explained that several substantial portions of pre-incident activity are relevant
to expert medical testimony that the Court has already held passes Daubert
muster. See dkt. 284 at 28–31. That relevance is not substantially outweighed
by the danger of unfair prejudice or confusing the issues, given the importance
of laying a factual foundation for the jury to evaluate expert testimony. See
Fed. R. Evid. 403. However, prior actions must be relevant to that purpose to
be elicited.
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Next, as explained above, prior actions that the officers did not know
about may not be used as the basis for argument about the reasonableness of
the actions. See Wallace v. Mulholland, 957 F.2d 333, 336 (7th Cir. 1992)
("[T]he danger that a jury will conclude that a mentally deficient plaintiff,
regardless of his actual behavior, somehow 'asked for' mistreatment at the
hands of two policemen is greater than the value of such evidence to explain
the police officers' use of force. That general proposition seems especially
correct where—as here—the police officers had no specific knowledge of
[plaintiff's] condition before they tried to take him away."). In short, the
reasonableness of the officers' conduct must be evaluated in light of Mr.
Todero's actions, rather than his condition. See id. While Officer Blackwell
nevertheless argues that Mr. Todero's "activities prior to the time Defendants
encountered him" are "extremely enlightening with respect to [Mr.] Todero's
psychological condition," he does not explain why it is relevant specifically to
the reasonableness of his actions. Dkt. 285 at 11.
The motion in limine is therefore GRANTED in part.
24.

Actions of first responders or hospital doctors

Ms. Todero seeks to exclude evidence or argument that first responders
or hospital doctors caused Mr. Todero's death, arguing that it would be
speculative. Dkt. 271 at 61–63. The only evidence identified, however, is that
a paramedic, Ian Godfrey, expressed concern that the Versed injection he gave
Mr. Todero could have affected Mr. Todero's heart, and that Dr. Hartman
agreed that it could have. The motion is GRANTED as to that evidence

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because, as explained above, Dr. Hartman may not offer expert medical
opinions. The same reasoning applies to Mr. Godfrey.
25.

Ms. Todero's statements about this case's value

Ms. Todero seeks to exclude evidence of conversations and messages that
she sent and received about the potential value of this case. Dkt. 271 at 63–
64. Officer Blackwell responds that the evidence is admissible to show that
this case is not simply about "Justice for Charlie." Dkt. 285 at 13. Any
marginal probative value of evidence of Ms. Todero's motives and the motives of
any witnesses is substantially outweighed by the danger of unfair prejudice,
confusing the issues, and misleading the jury. See Fed. R. Evid. 403.
Therefore, this motion in limine is GRANTED and the Court further orders that
no witnesses may testify to their subjective motivations in bringing or
supporting this case.
B. Greenwood Defendants' Motions in Limine
1.

Plaintiff's wrongful-death claim

Greenwood Defendants seek to exclude evidence and argument based on
a wrongful-death claim, arguing that Ms. Todero lacks sufficient evidence to
prove that Defendants' actions caused Mr. Todero's death. Dkt. 269 at 2–4.
Ms. Todero responds that the proper procedure is instead to move for a
directed verdict at trial, if Defendants believe that she lacks causation
evidence. Dkt. 286 at 5–6.
The Indiana Supreme Court has explained that when "causation [is] the
primary issue for the jury," both wrongful-death and survival actions may be
pursued "to verdict." Cahoon v. Cummings, 734 N.E.2d 535, 543 (Ind. 2000).
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Moreover, Greenwood Defendants have not identified any specific causation
evidence that would not otherwise be admissible or any prejudice from the
admission of any damages evidence that may be admissible only for a
wrongful-death claim. See dkt. 269 at 4. The motion in limine is therefore
DENIED at this stage.
2.

Argument and evidence barred by Daubert rulings

As explained at the final pretrial conference, the Court will not enter a
redundant order requiring Ms. Todero to abide by a previous order. The
consequences of intentionally violating a court order provide ample incentive for
self-regulation and compliance. This motion in limine is DENIED.
3.

Defendants' insurance and indemnification

By agreement of the parties, the parties may not reference insurance
coverage or indemnification. See dkt. 269 at 7; dkt. 286 at 14.
4.

Settlement negotiations

By agreement of the parties, the parties may not reference settlement
negotiations. See dkt. 269 at 7; dkt. 286 at 14.
5.

Hospital bills and medical expenses

By agreement of the parties, the parties may not reference hospital bills
and medical expenses from St. Francis hospital. See dkt. 269 at 7–10; dkt.
286 at 14.
6.

Officer Elliott's disciplinary history and resignation

By agreement of the parties, the parties may not reference Officer Elliott's
disciplinary history. See dkt. 269 at 10–13; dkt. 286 at 15 (admitting that
evidence of the incidents "likely should be excluded"). Similarly, the parties
20

may not reference Officer's Elliott's resignation and the related March 2018
incident. See dkt. 269 at 10–13; dkt. 286 at 16 ("Plaintiff again agrees that this
would likely not be admissible."). However, Ms. Todero argues that Officer
Elliott may open the door to evidence that she failed to turn on her body
camera in that incident, which would then be admissible to prove a lack of
mistake in failing to turn on her body camera during the incident underlying
this case. Dkt. 286 at 16–17. If Ms. Todero believes that the door has been
opened at trial, she may raise this issue outside the hearing of the jury.
7.

Other uses of force from Greenwood Police Department
officers, evidence of Taser training, and department
policies

Greenwood Defendants seek to exclude evidence and argument that
Officer Blackwell or other officers were inadequately trained, that the
department's policies were deficient, or that the department over-relied on
Tasers. Dkt. 269 at 13–17. They argue that this evidence is irrelevant because
Ms. Todero's Monell claims have been dismissed. Ms. Todero agrees that this
evidence "likely should be excluded—unless Defendants open the door," with
two exceptions. First, Ms. Todero contends that Officer Blackwell's prior Taser
uses are admissible. Second, she contends that "evidence of what Greenwood's
policies and training were regarding Taser use, use of force, and body camera
usage, and evidence regarding Defendants' compliance or non-compliance with
those policies—as opposed to evidence and argument about alleged deficiencies
in those policies—is potentially relevant" and should not be barred.
For Officer Blackwell's four prior Taser uses, any probative value is
substantially outweighed by the high risks of unfair prejudice, confusing the
21

issues, and misleading the jury. Fed. R. Evid. 403; see United States v. Gomez,
763 F.3d 845, 856 (7th Cir. 2014) (Rule 403 "applies with full force" to Rule
404(b) evidence.). There is ample evidence for the jury to consider regarding
Officer Blackwell's use of the Taser on Mr. Todero, while evidence of other
instances when he used a Taser carries "risk that the jury will draw the
forbidden propensity inference." Gomez, 763 F.3d at 857; see Houlihan v. City
of Chicago, 871 F.3d 540, 553 (7th Cir. 2017).
Moreover, the admission of evidence of past events would risk confusing
the issues and creating a mini-trial on issues including whether the past
events constituted excessive force and whether they are similar to the incident
involving Mr. Todero. See Manuel v. City of Chicago, 335 F.3d 592, 596–97 (7th
Cir. 2003). That balance is not changed by Todero's punitive-damages
argument that the evidence is relevant to show a likelihood that Officer
Blackwell "would repeat the conduct if an award of punitive damages is not
made." Dkt. 286 at 21. The same mini-trials about the reasonableness of the
prior Taser uses would still be required. See Manuel, 335 F.3d at 596–97.
And, as explained below, other evidence about training and policies is
admissible on that question. Greenwood Defendants' motion is limine is
therefore GRANTED on Officer Blackwell's prior Taser uses.
For evidence of the police department's training and policies, the parties
appear to agree that evidence of training and policies is admissible, but
argument that they were inadequate is not. See dkt. 269 at 14 ("Blackwell's
training may be relevant to the inquiry as to whether he should have deployed
the taser the number of times he did on the date in question, but assertions
22

that Blackwell was inadequately trained and/or that the department's policies
were deficient and thereby caused or contributed to the use of the taser are no
longer at issue."); dkt. 286 at 18 ("[E]vidence of what Greenwood's policies and
training were regarding Taser use, use of force, and body camera usage, and
evidence regarding Defendant's compliance or non-compliance with those
policies—as opposed to evidence and argument about deficiencies in those
policies—is potentially relevant in evaluating Plaintiff's claims, and should not
be barred in limine."). Greenwood Defendants' motion is limine is GRANTED
in part consistent with that understanding.
8.

Damages testimony from Mr. Todero's family members
other than Ms. Todero

Greenwood Defendants argue that Mr. Todero's family members, other
than Ms. Todero, should be barred from testifying about their own grief and
loss of love and companionship from Mr. Todero's death. Dkt. 269 at 17–18.
Ms. Todero responds that while "family members other than Teresa Todero are
not able to recover for their own loss of companionship," other family members'
testimony is relevant to Mr. Todero's loss of life. Dkt. 286 at 23–24. This
motion is GRANTED to the extent that family members other than Ms. Todero
may not testify about their own grief and loss of love and companionship from
Mr. Todero's death.
9.

Value of Mr. Todero's life

Greenwood Defendants argue that the proper measures of damages for
Mr. Todero's death is the loss of enjoyment of life, so Ms. Todero should not be
allowed to argue about the priceless value of human life. Dkt. 269 at 19–20.
23

Ms. Todero responds that both the value of life and the enjoyment of life "def[y]
a precise economic calculation," and that their argument will not seek to
improperly inflate a jury award. Dkt. 286 at 26.
Greenwood Defendants have not cited authority drawing such a rigid
distinction between the subjective value of life and the enjoyment of life, and
the case law does not support one. See Glisson v. Correctional Med. Servs.,
2018 WL 6807295 at *5 (S.D. Ind. 2018) (The "relevant question that the jury
must resolve" under § 1983 is "how enjoyment of life is measured," not "how the
overall value of a life is measured in the field of economics."); Mercado v.
Ahmed, 974 F.2d 863, 871 (7th Cir. 1992) (applying Illinois law and explaining
that studies about Americans' spending decisions do not "actually measure
how much Americans value life"). As explained above, the evidence at trial will
include testimony about Mr. Todero's life, and both parties may argue based on
that evidence what the appropriate amount of damages, if any, should be. This
motion in limine is therefore DENIED.
10.

Officers' instant messages

Greenwood Defendants seek to exclude instant messages among officers,
including Officer Blackwell, from shortly after the incident involving Mr.
Todero. Dkt. 269 at 20–23. They argue that any probative value is
substantially outweighed by the danger of unfair prejudice. Id. Ms. Todero
responds that the messages are not unfairly prejudicial and that they are
relevant to Officer Blackwell's state of mind and to punitive damages. Dkt. 286
at 28–30.

24

These instant messages, sent the same day as the incident, are relevant
to Officer Blackwell's state of mind when he deployed his Taser. See E.E.O.C. v.
Ind. Bell. Tele. Co., 256 F.3d 516, 528 (7th Cir. 2001). Indeed, all of the
messages identified by the parties are in the context of messages to or from
Officer Blackwell. See dkt. 269 at 20–23; dkt. 286 at 26–30. 3 And to the
extent they may show callousness or inappropriate levity—questions for the
jury to resolve—they are relevant to Ms. Todero's claim for punitive damages.
See id.; Woodward v. Correctional Med. Servs. Of Ill., 368 F.3d 917, 930 (7th
Cir. 2004). This motion in limine is therefore DENIED.
11.

Officer Elliott's remark at the hospital

Greenwood Defendants seek to exclude a remark from Officer Elliott that
she made at the hospital after the incident, arguing that any probative value is
substantially outweighed by the danger of unfair prejudice. Dkt. 269 at 23.
Ms. Todero responds that the remark is relevant to her mental state. Dkt. 286
at 30–31. For the reasons explained above about post-incident instant
messages, this motion in limine is DENIED.
12.

Greenwood Police Department "cover up"

Greenwood Defendants argue that the police department's post-incident
investigation is irrelevant and that any relevance is substantially outweighed
by the danger of confusing the issues and misleading the jury. Dkt. 269 at 2327. Ms. Todero responds by agreeing "that she will not present generalized

Two of the messages are context for a message from Officer Blackwell but refer to a
separate incident; Ms. Todero has no objection to excluding that context if Defendants
prefer. Dkt. 286 at 29 n.8.
3

25

arguments or evidence that the Greenwood PD conducted an inadequate
investigation of the tasing or engaged in a coverup" and that she "does not
intend to introduce evidence that Defendants failed to discipline Defendant
Blackwell as part of a cover up." Dkt. 286 at 32–35. This motion is GRANTED
consistent with that agreement.
The motion is otherwise DENIED at this pre-trial stage as to the specific
evidence that Ms. Todero identified in her brief but Greenwood Defendants did
not specifically move to exclude. It is also DENIED at this stage as to evidence
that the Greenwood Police Department officers may be "lying and covering up
for each other."
13.

"Golden Rule" argument

By agreement of the parties, the parties may not make "Golden Rule"
arguments. See dkt. 269 at 27–28; dkt. 286 at 35.
C. Officer Blackwell's Motions in Limine
1.

Joinder in Greenwood Defendants' motions in limine

The Court acknowledges Officer Blackwell's joinder in Greenwood
Defendants' motions in limine.
2.

Other incidents involving Officer Blackwell

Officer Blackwell seeks to exclude evidence of incidents involving other
alleged acts of police brutality, excessive force, false arrest, or illegal search
and seizure. Dkt. 270 at 1–2. However, the parties have not identified any
specific instances or the facts surrounding them, except for the prior Taser
uses addressed in the Greenwood Defendants' motion in limine number seven.
The Court therefore cannot fully evaluate the probative value or the risks of
26

unfair prejudice and confusing the issues. For these reasons and to ensure the
orderly presentation of evidence at trial, this motion is GRANTED at this stage
to the extent that Ms. Todero must first raise the evidence that she intends to
elicit outside the hearing of the jury.
3.

Citizens' complaints or internal discipline

Officer Blackwell seeks to exclude evidence of citizens complaints or
internal discipline. Dkt. 270 at 2. In accordance with the rulings on
Greenwood Defendants' motion in limine number seven and on Officer
Blackwell's motion in limine number two, that motion is GRANTED at this
stage to the extent that Ms. Todero must first raise the evidence that she
intends to elicit outside the hearing of the jury.
4.

Settlement offers and negotiations

As explained above, by agreement of the parties, the parties may not
reference settlement offers or negotiations. See dkt. 269 at 7; dkt. 270 at 2;
dkt. 286 at 14
5.

Insurance coverage

As explained above, by agreement of the parties, the parties may not
reference insurance coverage or indemnification. See dkt. 269 at 7; dkt. 270 at
2; dkt. 286 at 14.
6.

Information not provided in discovery

Officer Blackwell seeks to exclude "information that Plaintiff failed to
provide" under the discovery rules but does not cite any evidence that would be
excluded under this motion. Dkt. 270 at 2. This motion is therefore DENIED
at this pre-trial stage.
27

7.

Post-incident messages

Officer Blackwell seeks to exclude his post-incident messages with other
officers about the incident with Mr. Todero. Dkt. 270 at 2–3. In accordance
with the ruling on Greenwood Defendants' motion in limine number ten, this
motion is DENIED.
IV.
Conclusion
The parties' motions in limine are GRANTED in part and DENIED in
part in accordance with this order. Dkt. [268]; dkt. [270]; dkt. [271]. As with
all orders in limine, this order is preliminary and "subject to change when the
case unfolds." Luce v. United States, 469 U.S. 38, 41 (1984). No party shall
reference or attempt to elicit evidence that has been provisionally excluded by
this order without first seeking permission from the Court outside the presence
of the jury. Each party SHALL ENSURE its witnesses' compliance with this
order.
Consistent with the Court's instructions at the final pretrial conference,
counsel shall raise reasonably foreseeable evidentiary issues in advance
outside the presence of the jury—generally before or after the trial day, over
lunch, or at a break. That includes situations when a party believes that the
evidence at trial justifies a modification to this order. To avoid wasting the
jury's time, counsel must make every effort to avoid raising issues when they
would require a sidebar or recess, which will be allowed only in extenuating
circumstances.
SO ORDERED.
28

Date: 10/7/2021

29

APPENDIX A—TABLE OF MOTIONS AND RULINGS
#
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

16
17
18
19
20
21
22
23

Ms. Todero's Motions in Limine
Motion
Ruling
Exclude undisclosed expert testimony from
Granted
Dr. Hartman
Undisclosed witnesses
Granted as to all parties
Defendants' financial ability to pay a
Granted by agreement
judgment
Ms. Todero's attorneys from Chicago
Granted
Defendants' positive employment history
Granted in part
Defendants' employment or criminal
Granted by agreement
consequences
Jurors' pecuniary interests
Granted by agreement
Duplicative witness examinations
Denied
Former claims and defendants
Granted by agreement
Dr. Kroll's opinions on electrocution
Denied
Dr. Kroll's opinions on Taser safety generally
Denied
Mr. Todero's heart attack at sixteen
Granted
Mr. Todero's being under the influence of
Granted
undetected drugs at the time of the incident
Cannabinoids in Mr. Todero's system at the
Granted
time of the incident
Alleged prior bad acts
1. Limiting evidence to what the officers
1.
Granted
knew at the time of the incident
2. Arrests, charges, and other police
2.
Granted
contact
3. Substance abuse
3.
Granted
4. Disputes with Ms. Todero
4.
Denied
Criminal history of Mr. Todero's family
Denied as to Rule 609;
members
otherwise granted
Theory that Mr. Todero was suicidal
Granted in part; denied
in part
Ms. Todero's statements about conflict
Denied
between her and Mr. Todero
Statements from the Todero family about Mr.
Granted
Todero's cause of death
Dr. Vilke's opinion about drug intoxication
Resolved in Daubert
causing Excited Delirium Syndrome
order
Dr. Vilke's opinions as a substitute witness
Resolved in Daubert
for Dr. Wetli
order
Officer Blackwell's admissions
Resolved by agreement
Mr. Todero's activities prior to the incident
Granted in part; denied
in part
30

#
24
25

Ms. Todero's Motions in Limine
Motion
Ruling
Actions of first responders and hospital
Granted
doctors
Ms. Todero's statements about the case's
Granted
value

13

Greenwood Defendants' Motions in Limine
Motion
Ruling
Wrongful death claim
Denied
Previous Daubert orders
Denied
Liability insurance or indemnification
Granted by agreement
Settlement negotiations
Granted by agreement
Medical bills/expenses
Granted by agreement
Elliott's disciplinary history & resignation
Granted by agreement
Prior uses of force; police department policies Granted in part
and Taser training
Damages testimony from Mr. Todero's family
Granted in part
other than Ms. Todero
Value of life argument
Denied
Officers' instant messages
Denied
Elliott's remark at the hospital
Denied
Cover-up and failure to discipline
Granted in part; denied
in part
Golden rule argument
Granted by agreement

#
1
2
3
4
5
6
7

Officer Blackwell's Motions in Limine
Motion
Ruling
Joinder in Greenwood Defendants' motions
Other incidents involving Officer Blackwell
Granted
Citizens' complaints or internal discipline
Granted
Settlement evidence
Granted by agreement
Insurance coverage
Granted by agreement
Undisclosed evidence
Denied
Blackwell's post-incident instant messages
Denied

#
1
2
3
4
5
6
7
8
9
10
11
12

31

Distribution:
Steven E. Art
LOEVY & LOEVY
[e-mail]
Scott R. Drury
LOEVY & LOEVY
[e-mail]
D. Samuel Heppell
LOEVY & LOEVY
[e-mail]
Mark A. Holloway
STEPHENSON MOROW & SEMLER
[e-mail]
Theresa Kleinhaus
LOEVY & LOEVY
[e-mail]
Jonathan I. Loevy
LOEVY & LOEVY
[e-mail]
Arthur Loevy
LOEVY & LOEVY
[e-mail]
Caren L. Pollack
POLLACK LAW FIRM, P.C.
[e-mail]
Scott R. Rauscher
LOEVY & LOEVY
[e-mail]
Makeba Rutahindurwa
LOEVY & LOEVY
[e-mail]
Pamela G. Schneeman
STEPHENSON MOROW & SEMLER
[e-mail]
James S. Stephenson
32

STEPHENSON MOROW & SEMLER
[e-mail]
Lana R. Swingler
POLLACK LAW FIRM PC
[e-mail]

33