Rose v. Shelby County, Kentucky et al

Filing 217

MEMORANDUM OPINION & ORDER: 1. The Plaintiffs' Motion in Limine to exclude evidence that Robinson offered to pay a cellmate for testimony [R. 195 at 5-6] is DENIED; 2. The Plaintiffs' Motion to Bifurcate [R. 196 ] is DENIED, and; 3. TELEPHONIC SCHEDULING CONFERENCE set for 1/6/2022 at 10:00 AM in FRANKFORT before Judge Gregory F. Van Tatenhove. The parties should be prepared to discuss potential trial dates. To join the teleconference, the parties are directed to call AT&T Teleconferencing at and enter Access Code (followed by #), and, when requested, enter the Security Code (followed by #). Signed by Judge Gregory F. Van Tatenhove on 12/13/2021.(JJ)cc: COR,Fkt Modified text on 12/13/2021 (JJ).

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
DONNITA ROBINSON, et al.,
Plaintiffs,
V.
SHELBY COUNTY, KENTUCKY, et al.,
Defendants.

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Civil No. 3:17-cv-00097-GFVT
MEMORANDUM OPINION
&
ORDER

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This matter is before the Court upon Plaintiffs Mercedes Castillo, Alicia Quire, and
Donnita Robinson’s Motions in Limine, Motion to Bifurcate Trial, and Supplement to the
Motion to Bifurcate. [R. 195; R. 196; R. 207.] The Plaintiffs first seek to exclude evidence that
Robinson allegedly offered to pay her cellmate in exchange for favorable testimony. In the
alternative, the Plaintiffs seek to bifurcate Robinson’s claims against the Defendants from those
of Quire and Castillo. For the reasons that follow, the Motion in Limine and Motion to Bifurcate
are DENIED.
I
Plaintiffs Robinson, Quire, and Castillo were inmates at the Shelby County Detention
Center who allegedly suffered sexual abuse by jail staff in late 2016. [R. 9.] In their operative
Complaint—the Third Amended Complaint—they bring claims against Shelby County and
various employees of the Shelby County Detention Center alleging violations of 42 U.S.C §
1983 and state law. Id. The case proceeded through discovery and summary judgment and is
now ready to be set for trial on the remaining claims. [See R. 140; R. 149.]

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The Plaintiffs now move to bifurcate Robinson’s trial from Quire and Castillo’s. [R.
196.] Their Motion is based on the expected testimony that Robinson offered to pay another
inmate to provide testimony against Defendant Votaw. [R. 196 at 1.] This testimony does not
indicate Quire or Castillo were involved in the alleged offer and Quire and Castillo do not raise
claims against Defendant Votaw. Id. The Plaintiffs argue for bifurcation because this testimony
is irrelevant to Quire and Castillo’s claims, would unduly prejudice them, and would confuse the
jury. Id. at 2-3.
The parties addressed this Motion with the Court in their Final Pre-Trial Conference on
September 15, 2021. [R. 209.] In that Conference, the Defendants confirmed they do not intend
to imply in their opening statements that Quire and Castillo participated in this offer. Id. at 1517. This confirmation assuaged concerns the Court may have had about trying these claims
together. Id. at 17 (“So with that, I think it’s less necessary that we bifurcate this case.”) In
response, counsel for the Plaintiffs raised a concern with Robinson’s competency and ability to
participate in the trial. Id. at 18. The Court then held an in camera, ex parte hearing with the
Plaintiffs’ counsel to learn the specifics of their concern and determine how to proceed. Id. at
22-26.
Following this hearing, the Court ordered the Plaintiffs to supplement their Motion to
Bifurcate, specifically addressing whether Robinson is competent to testify, whether an
examination pursuant to Federal Rule of Civil Procedure 35(a) is necessary, and any other
requested relief. [R. 203.] The Plaintiffs’ Supplement indicates they believe Robinson is
competent to testify and an examination is not necessary. [R. 207.] Regardless, they argue the
trial should still be bifurcated because Robinson may make irrelevant statements on the stand.
Though she is almost certain to be a witness in both trials, the Plaintiffs argue her involvement

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would be more limited in a bifurcated trial, lessening negative impact from such statements. Id.
at 2. Four Defendants responded, presenting various arguments against bifurcation. These are
largely based on judicial economy, burden on the parties, and the ability of a jury to separate the
claims. [R. 211; R. 212; R. 213.] The Defendants also argue that the Plaintiffs’ assertion that
Robinson is competent to testify weighs strongly against bifurcation and that the possibility of
her making irrelevant statements does not justify bifurcation. Id.
II
A
The Plaintiffs make their Motion to Bifurcate in the alternative to their Motion in Limine
to exclude testimony about Robinson’s alleged payment in exchange for testimony. [R. 196 at
1.] Therefore, as an initial matter, the Court must rule on the Motion in Limine. 1 [R. 195 at 56.] The Plaintiffs argue this evidence should be excluded because it is irrelevant and unduly
prejudicial to Quire’s and Castillo’s claims. Id.
First, this evidence is relevant. While it is true that this testimony does not tend to make
Quire or Castillo’s claim more or less probable, it does affect the credibility of Robinson’s claim.
See United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986) (upholding admission of
similar evidence challenged under Fed. R. Evid. 404(b)). Evidence does not, as the Plaintiffs
suggest, need to be relevant to each claim in an action to be relevant. [See R. 195 at 5.] Federal
Rule of Evidence 401 only requires evidence make a “fact more or less probable,” not every fact
or every claim. This evidence, if elicited at trial and deemed credible by the jury, would have a
tendency to make Robinson’s claim that Votaw abused her less probable. Mendez-Ortiz, 810
F.2d at 79 (“The fact that defendant attempted to bribe and threaten an adverse witness indicates
The Court will only rule on this specific Motion in Limine because it is necessary to resolve the Motion to
Bifurcate. The remaining Motions in Limine will be resolved closer to trial.

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‘his consciousness that his case is a weak or unfounded one; and from that consciousness may be
inferred the fact itself of the cause's lack of truth and merit.’” (quoting II Wigmore, Evidence §
278 (Chadbourn Rev.1979))). The testimony that Robinson offered to pay a witness to testify in
her favor against Votaw is relevant.
Further, the undue prejudice of the evidence does not substantially outweigh its probative
value. The Plaintiffs argue this evidence will be unfairly attributed to Quire and Castillo and this
attribution is so prejudicial the jury will be poisoned against them. [R. 195 at 5-6.] The
testimony is probative because an offer to pay for testimony weakens Robinson’s claim. See
Mendez-Ortiz, 810 F.2d at 9. Conversely, the potential of unfair prejudice to the other plaintiffs
is not significant enough to “substantially outweigh” that probative value. Fed. R. Evid. 403.
It is far from a foregone conclusion that the expected testimony will implicate Quire or
Castillo, or that opposing counsel will imply their involvement. Counsel for the Defendants
confirmed that they do not intend to argue in their opening statements that Quire or Castillo were
involved in the alleged payment. [R. 209 at 15-17.] Though some attorneys did indicate there
may be grounds to infer the other Plaintiffs’ involvement, it is unclear at this point whether
testimony to that end will be elicited. As the Court stated in the final pretrial conference, “[if]
there’s no evidence of it; I’m not going to allow counsel to argue it.” Id. at 14. If no testimony
is elicited implicating the other Plaintiffs, the jury is fully capable of distinguishing that the
testimony is relevant to Robinson’s claim only. Further, if a party improperly implies
involvement, the Court could consider a curative instruction.
Even if such testimony is proffered, its prejudice to Quire and Castillo may not
necessarily be unfair. Some of the Defendants suggested they may question this witness about
Quire and Castillo’s involvement in some general scheme with Robinson. [R. 209 at 9-12.] If

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there is a witness who testifies to that end under oath, such information would not be “unfairly”
prejudicial. Rather, any effect on Quire and Castillo’s claims would be “damage . . . that results
from the legitimate probative force of the evidence.” United States v. Newsom, 452 F.3d 593,
603 (6th Cir. 2008) (quoting United States v. Bonds, 12 F.3d 540, 567 (6th Cir.1993)).
Ultimately, it is inappropriate to preclude this evidence for its potential to unfairly
prejudice Quire and Castillo before the testimony occurs. It is unclear at this point whether they
will be implicated and, if so, whether prejudice resulting from that implication would be unfair.
If they are not implicated, a jury will be able to distinguish that the evidence is relevant to
Robinson’s claim alone. The testimony about Robinson’s alleged offer of payment in exchange
for testimony is admissible under Federal Rules of Evidence 401 and 403.
B
Federal Rule of Civil Procedure 42(b) provides that “for convenience, to avoid prejudice,
or to expedite and economize, the court may order a separate trial of one or more separate issues,
claims, crossclaims, counterclaims, or third-party claims.” Fed. R. Civ. P. 42(b). In determining
whether to grant a motion to bifurcate, the Court considers “the potential prejudice to the parties,
the possible confusion of the jurors, and the resulting convenience and economy.” Wilson v.
Morgan, 477 F.3d 326, 339 (6th Cir. 2007). Bifurcation is justified if one of these criteria are
satisfied. Saxion v. Titan-C-Manufacturing, Inc., 86 F.3d 553, 556 (6th Cir, 1996).
Plaintiffs present the same argument for prejudice and juror confusion: testimony that
Robinson offered payment in exchange for testimony will be unfairly attributed to Quire and
Castillo. [R. 196.] As explained above, the testimony may not implicate Quire and Castillo. It
is also possible that they will be fairly implicated in the testimony, which does not constitute
prejudice warranting bifurcation. Instructions may also be used to emphasize to the jury the

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proper applicability of this testimony. Accordingly, the case should not be bifurcated into
multiple trials based on the potential of prejudice to Quire and Castillo

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As to the possibility of a jury being confused by this potential testimony, juries regularly
resolve cases involving distinct claims and parties. The Court agrees with the Defendants that
the Plaintiffs’ argument discredits the jury’s ability to separate claims and defenses. Any
particularly confusing testimony could be mitigated “through use of cautionary warnings,
limiting instructions, special verdict forms, and other instructions to the jury.” Rothstein v.
Steinberg, No. 5:08-cv-0673, 2008 WL 5716138, at *2 (N.D. Ohio June 9, 2008); see Fed. R.
Evid. 105.
The Plaintiffs also raise a concern that Robinson may make irrelevant statements on the
stand. [R. 207 at 2.] They recognize she would likely be called in both trials if the claims are
bifurcated, but that “her involvement would be less than in a non-bifurcated trial.” Id. This
possibility is insufficient to warrant bifurcation. A potential that more irrelevant evidence may
be presented in a non-bifurcated trial as compared to a bifurcated trial is not an enumerated
ground for bifurcation. See Fed. R. Civ. P. 42(b). Counsel for the parties are well equipped to
object to irrelevant evidence if it is presented during trial. Further, if it becomes necessary, the
Court can consider instructing the jury to not consider irrelevant evidence.
Finally, convenience and economy do not justify bifurcation. Robinson raises many
overlapping claims against Defendants shared with Quire and Castillo. [See R. 9.] These claims
share many of the same witnesses and much of the same evidence. [See, e.g. R. 170; R. 171;
R. 174; R. 175; R. 179.] The Plaintiffs concede that judicial economy would suffer from
bifurcation. [R. 196.]

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III
The facts of the case do not warrant bifurcation of Plaintiff Robinson’s claims from those
of Quire and Castillo. Accordingly, and the Court being otherwise sufficiently advised, it is
hereby ORDERED:
1. The Plaintiffs’ Motion in Limine to exclude evidence that Robinson offered to pay a
cellmate for testimony [R. 195 at 5-6] is DENIED;
2. The Plaintiffs’ Motion to Bifurcate [R. 196] is DENIED, and;
3. This matter is set for a telephonic scheduling conference on Thursday, January 6, 2022
at 10:00 a.m. to set the case for trial, with the Court sitting in Frankfort, Kentucky. The
parties should be prepared to discuss potential trial dates. To join the teleconference, the
parties are directed to call AT&T Teleconferencing at 1-877-336-1280 and enter Access
Code 2086161 (followed by #), and, when requested, enter the Security Code 09170
(followed by #).

This the 13th day of December, 2021.

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