Harris v. Klare

Filing 70

MEMORANDUM & ORDER:that Defendants Motion in Limine 61 is GRANTED. Plaintiff may not introduce evidence of, or reference, Klares past performance reviews or discipline, or any prior involvement in litigation. If Plaintiff believes that Defendant Klare has opened the door during trial to potentially use this excluded evidence to impeach Plaintiff must do so outside the presence of the jury to allow the Court to make that determination. Signed by Judge David L. Bunning on 04/11/2019.(KRB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 15-138-DLB-EBA
BRITTANY HARRIS

PLAINTIFF

v.

MEMORANDUM ORDER

KIMBERLY KLARE

DEFENDANT
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This matter is before the Court upon Defendant Kimberly Klare’s Motion in Limine
(Doc. # 61), wherein the Defendant seeks to exclude from trial any argument or evidence
related to Officer Klare’s past performance reviews and disciplinary records and her past
involvement in litigation. Plaintiff having filed a Response (Doc. # 62) and Defendant
having filed a Reply (Doc. # 63), the Motion is now ripe for the Court’s review. On April
11, 2019, the Court held a Final Pretrial Conference, during which time the Court heard
oral arguments on the pending Motion. For the reasons that follow, the Defendant’s
Motion in Limine (Doc. # 61) is granted.
I.

ANALYSIS
A.

Standard of Review

“Although the Federal Rules of Evidence do not explicitly authorize in limine
rulings, the practice has developed pursuant to the district court’s inherent authority to
manage the course of trials.” Luce v. Unites States, 469 U.S. 38, 41 n. 4 (1984). “The
Federal Rules of Evidence, the Federal Rules of Criminal and Civil Procedure and

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interpretive rulings of the Supreme Court and this court all encourage, and in some cases
require,

parties

and

the

court

to

utilize

extensive

pretrial

procedures—

including motions in limine—in order to narrow the issues remaining for trial and to
minimize disruptions at trial.” United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999).
B.

Prior Litigation and Personnel Records

Defendant Klare seeks to have the Court exclude from trial “the introduction of,
reference to, or use of . . . any performance reviews or past discipline of Officer Klare
contained in her personnel file” and “any prior lawsuits to which Officer Klare was a named
party.” (Doc. # 61). Defendant Klare argues that this evidence is irrelevant to the case
before the Court and is improper character evidence. (Doc. # 61-1 at 3-6). Plaintiff Harris
suggests that she may use this evidence for impeachment purposes during trial, rather
than as affirmative evidence. (Doc. # 62 at 1). Harris does not appear to dispute
Defendant’s contention that the evidence would otherwise be improper. (Doc. # 62).
Defendant Klare argues, however, that even used as impeachment evidence, the
evidence at issue is highly prejudicial and must be excluded. (Doc. # 63 at 2-3).
The Plaintiff has conceded that she does not plan to use the evidence affirmatively.
The Plaintiff, however, notes that “circumstances and trial preparation change as trial
proceeds” and seems to allude to the possibility of using this evidence affirmatively at
trial. Plaintiff fails, however, to put forth arguments rebutting Defendant’s assertion that
the evidence is irrelevant and improper character evidence. Plaintiff has failed to pass
even the most basic threshold evidentiary test, showing that such evidence of prior acts
could be relevant to the case at hand. Fed. R. Evid. 401. Until such a showing is made,
the Court will not speculate as to the possible relevance and admissibility. Thus, the

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Motion in Limine must be granted as to the use of this evidence affirmatively, as the
Plaintiff fails to put forth evidence that it is relevant and not improper.
Plaintiff is also unable to put forth an exemplary instance during which the evidence
could appropriately be used for impeachment. (Doc. # 62). Impeachment evidence is
used to attack the credibility of a testifying witness. Impeachment of a witness can occur
in a number of ways: “[c]ontradiction through another witness; [a] showing that the witness
made a prior inconsistent statement; [a]n attack on character for truthfulness; [a] showing
of prior conviction; [a] showing of bias or interest; or [a] showing of defects in the witness’s
perception or ability to observe.” Roger C. Park & Aviva Orenstein, Trial Objections
Handbook § 7:2 (2d ed. 2018).
Plaintiff has failed to show how the personnel records or evidence of prior litigation
could be used for impeachment purposes in any of these ways. Thus, the Court is left to
speculate about whether the opportunity would arise during trial for the at-issue evidence
to be used to impeach. The Court finds Defendant’s argument that Plaintiff would not be
able to use the evidence for impeachment purposes without first using it affirmatively to
be persuasive. (Doc. # 63 at 4). Until Plaintiff is able to show the Court that such evidence
is appropriately admissible, it will be excluded.
II.

CONCLUSION
Accordingly, IT IS ORDERED that Defendant’s Motion in Limine is GRANTED.

Plaintiff may not introduce evidence of, or reference, Klare’s past performance reviews or
discipline, or any prior involvement in litigation. If Plaintiff believes that Defendant Klare
has opened the door during trial to potentially use this excluded evidence to impeach,

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Plaintiff must do so outside the presence of the jury to allow the Court to make that
determination.
This 11th day of April, 2019.

K:\DATA\ORDERS\Cov2015\15-138 Order re MIL .docx

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