King et al v. Taylor et al
Filing
91
OPINION AND ORDER: The Court ORDERS that Plas' 76 Motion in Limine to exclude various evidence at trial is GRANTED IN PART and DENIED IN PART as set forth in the order. Signed by Judge Karl S. Forester on May 24, 2013. (AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 10-96- KSF
ALLEN KING and BRUCE KING, as
Administrators of the Estate of Roger King
VS.
PLAINTIFFS
OPINION & ORDER
ERIC TAYLOR, in his individual capacity
as a Kentucky State Trooper
DEFENDANT
***********
Currently before the Court is the motion in limine of the Plaintiffs, Allen King and Bruce
King, as Administrators of the Estate of Roger King (“Plaintiffs”), to exclude various evidence at
trial [DE #76]. This motion is fully briefed and is ripe for review.
I.
FACTUAL BACKGROUND
On November 25, 2009, in Boyle County, Kentucky, KSP Trooper Eric Taylor and officers
from the Boyle County Sheriff’s Office attempted to serve an emergency protective order and an
arrest warrant on Roger King (“King”). However, when the officers went to serve the EPO and
arrest warrant on King at his home, King did not answer the front door or a side door. The officers
moved to the rear of the house and saw a set of double-paned glass doors at the top of the porch that
provided a line of sight to the interior of the house. Through the glass doors, one of the officers saw
King lying down on a couch with a blanket partially covering him. With Trooper Taylor providing
cover, one of the other officers approached the glass door, knocked loudly, announced that he was
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with the Sheriff’s Department and called for King to come to the door, while also pressing his
shoulder against the door pane so that his reflective Boyle County Sheriff’s Office patch would be
visible through the glass, and illuminating the interior of the home with his hand-held flashlight.
Trooper Taylor alleges that, upon seeing the police officers at the rear of his house, King sat up on
his couch, looked at the officers angrily, retrieved a large, fully-loaded firearm (a Taurus Judge
revolver) from his left side and turned toward the officers, pointing his weapon at them. Trooper
Taylor alleges that he responsively fired his M-16 at King. King died of the gunshot wound.
Plaintiffs do not contest that King had a gun with him on the couch. Rather, Plaintiffs argue that
Taylor shot King from King’s back porch while King was lying on his couch. According to
Plaintiffs, King was not extending a gun in the officers’ direction and may have been sleeping when
he was shot.
Plaintiffs filed this civil action pursuant to 42 U.S.C. § 1983, alleging the following claims
against Trooper Taylor: (1) unreasonable search and seizure in violation of the Fourth and Fourteenth
Amendments to the United States Constitution (Count I); (2) assault and battery (Count II); and (3)
negligence (Count III) [DE #1]. Plaintiffs are seeking compensatory and punitive damages from
Trooper Taylor [Id.].
II.
STANDARDS
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court
discussed the admissibility of evidence as follows:
Rule 402 provides the baseline:
All relevant evidence is admissible, except as otherwise provided by
the Constitution of the United States, by Act of Congress, by these
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rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.
“Relevant evidence” is defined as that which has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Rule 401. The Rule's basic
standard of relevance thus is a liberal one.
Id. at 587. Many years ago, the Sixth Circuit recognized that a court should not “deprive plaintiffs
of their legitimate right to place before the jury the circumstances and atmosphere of the entire cause
of action which they have brought into the court, replacing it with a sterile or laboratory
atmosphere....” In re Beverly Hills Fire Litigation, 695 F.2d 207, 217 (6th Cir. 1982).
However, even relevant evidence may be excluded “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.
R. Evid. 403. Federal courts have held that Rule 403 is an extraordinary remedy and carries a strong
presumption in favor of admissibility. U.S. v. Grant, 256 F.3d 1146, 1155 (11th Cir. 2001). In In
re Air Crash Disaster, 86 F.3d 498 (6th Cir. 1996), the Sixth Circuit noted:
Rule 403 does not exclude evidence because it is strongly persuasive or compellingly
relevant – the rule only applies when it is likely that the jury will be moved by a piece
of evidence in a manner that is somehow unfair or inappropriate. The truth may hurt,
but Rule 403 does not make it inadmissible on that account.
Id. at 538. “Virtually all evidence is prejudicial or it isn’t material. The prejudice must be ‘unfair.’”
Koloda v. General Motors Parts Div., General Motors Corp., 716 F.2d 373, 378 (6th Cir. 1983).
Motions in limine “are generally used to ensure evenhanded and expeditious management
of trials by eliminating evidence that is clearly inadmissible for any purpose.” Bouchard v. American
Home Products Corp., 213 F.Supp.2d 802, 810 (N.D.Ohio 2002)(citation omitted). “Orders in
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limine which exclude broad categories of evidence should rarely be employed. A better practice is
to deal with questions of admissibility of evidence as they arise.” Sperberg v. Goodyear Tire &
Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). Indeed, “[t]he Court has the power to exclude
evidence in limine ‘only when evidence is clearly inadmissible on all potential grounds.’” Gresh v.
Waste Services of America, Inc., 738 F.Supp.2d 702, 706 (E.D.Ky. 2010)(quoting Bouchard, 213
F.Supp.2d at 810). “Unless the evidence meets this high standard, ‘rulings should be deferred until
trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper
context.’” Id. (quoting Indiana Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D.Ohio 2004)).
Denial of a motion in limine does not guarantee that the evidence will be admitted at trial, as
objections to such evidence will still be heard as they arise at trial. Id. Moreover, the Court has
sound discretion to alter or amend a previous in limine ruling at trial. Id. (citing Luce v. United
States, 469 U.S. 38, 41-42 (1984)).
III.
ANALYSIS
Plaintiffs’ motion has several discrete components. The Court will address each component
in the order set out in Plaintiffs’ motion. First, Plaintiffs seek to preclude the introduction of any
testimony or documents reflecting that stolen guns, or that any weapons other than the handgun
allegedly brandished at the officers, were recovered in King’s residence after the shooting. Plaintiffs
argue that this evidence is irrelevant and unduly prejudicial. Specifically, Plaintiffs state that there
has been no determination that any of the weapons retrieved from King’s residence were stolen. In
addition, Plaintiffs argue that the relevant issue is what Trooper Taylor knew before he shot King.
Thus, evidence that firearms, including a stolen firearm, were found in King’s home after King was
shot is irrelevant. According to Plaintiffs, if Trooper Taylor did not know that firearms, stolen or
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otherwise, were present in the home before he responded and shot and killed King, what Trooper
Taylor learned after the shooting could not have affected his mindset, decision-making, or make him
fear for his safety.
Trooper Taylor counters that Plaintiffs have raised the motives of Trooper Taylor in serving
the arrest warrant and EPO at night, questioned the danger posed by King, and alleged that King
would not have posed a deadly threat to the officers serving the warrant and EPO. According to
Trooper Taylor, the presence of numerous firearms in the home, including a stolen firearm, shows
that the information provided to the officers prior to serving the warrant and EPO on King - that he
was heavily armed, that he had previously fired upon police officers, and that he generally engaged
in violent criminal behavior - was reliable, thus showing that the officers were justified in fearing
for their safety. Trooper Taylor also argues that, given that possession of a stolen firearm is a felony
under Kentucky law, the presence of a stolen firearm in the residence offers the jury further insight
into King’s motive to point a firearm at the officers.
This portion of Plaintiffs’ motion essentially has two components: (1) seeking to exclude
evidence that a stolen firearm was found in King’s residence; and (2) seeking to exclude evidence
that any other firearm - other than the handgun King allegedly brandished at the officers - was found
in King’s residence. As to the evidence that a firearm located at King’s residence had been stolen,
the Court agrees that this evidence should be excluded. Although it is possible that the fact that King
was in possession of a stolen firearm may have contributed to his motivation to point a firearm at
the officers, this theory is speculative, at best. Moreover, the limited relevance of this evidence is
greatly outweighed by the undue prejudice that would result from admitting this evidence.
Accordingly, this portion of Plaintiffs’ motion in limine will be GRANTED.
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However, the request to preemptively exclude evidence that any other firearm was found in
King’s residence presents a more difficult question. The relevance of this evidence is contingent
upon arguments made by the parties at trial. For example, should Plaintiffs attempt to argue that
King would never have posed a deadly threat to the officers serving the warrant and EPO, evidence
that King was heavily armed potentially becomes relevant. On the other hand, if Plaintiffs do not
make this argument or similar arguments, then the evidence that other guns were in the home is
irrelevant. To be sure, the potential prejudice that would result from admitting this evidence is great.
However, the Court is unable to determine whether this prejudice is outweighed by the relevance of
the evidence at this point in time. Accordingly, the Court finds that it is more appropriate to deal
with the question of the admissibility of this evidence when it arises at trial, so that questions of
foundation, relevancy and potential prejudice may be resolved in proper context. Thus, this portion
of Plaintiffs’ motion in limine is DENIED. If appropriate, Plaintiffs may renew their motion at trial.
The second portion of Plaintiffs’ motion seeks to preclude any hearsay statements regarding
King’s propensity to violence or his prior altercations with law enforcement. According to Plaintiffs,
this evidence should be excluded for the following reasons: it is hearsay evidence for which there
is no exception; it is inadmissible character evidence under FRE 404(a); and it is inadmissible under
FRE 404(b) as evidence of prior crimes, wrongs or other bad acts. In response, Trooper Taylor
argues that, given that Plaintiffs have alleged that Trooper Taylor had no reason to fear for his life,
was not justified in serving the arrest warrant and EPO at night and failed to exercise reasonable
caution, Trooper Taylor’s knowledge of King’s violent past, including his prior altercation with law
enforcement, is directly relevant to why Trooper Taylor and the other officers served the arrest
warrant and EPO in the manner that they did. Further, Trooper Taylor argues that this evidence is
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not hearsay, as it is not being offered to show the truth of the matter asserted, but is being offered
to show Trooper Taylor’s knowledge of King’s propensity for violence. In addition, Trooper Taylor
states that the individuals who informed Trooper Taylor about King’s tendencies prior to the
shooting, the officers to whom King had previously shown violence, and the officers at whom King
had previously fired are listed as witnesses and are available to testify.
The Court agrees that this testimony is not hearsay. FRE 801(c) defines “hearsay” as a
statement that: “(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R.
Evid. 801. Here, not only are the declarants available to testify at trial, but the evidence is not being
offered to prove that King actually fired upon officers or that he had a propensity for violence. Thus,
this evidence is not hearsay.
Moreover, FRE 404(b) does not require the exclusion of this evidence. Rule 404(b) provides
as follows:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. 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.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible
for another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. On request by a
defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial; and
(B) do so before trial--or during trial if the court, for good cause, excuses lack of
pretrial notice.
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Fed. R. Evid. 404(b). Trooper Taylor argues that evidence that King had previously fired at police
officers is relevant to showing intent, knowledge and absence of mistake or accident. Specifically,
Trooper Taylor argues that he and the other police officers knew of King’s propensity for violence,
including that he had previously fired upon law enforcement, prior to serving the EPO and warrant
on King. Indeed, according to Trooper Taylor, he and the other officers chose to serve the EPO and
warrant in the manner that they did because they had been told that King had previously been violent.
Thus, under Rule 404(b), this evidence is admissible, to the extent that it shows intent, knowledge
and absence of mistake or accident. Although Plaintiffs argue that Rule 404(b) applies only to
criminal cases, the Advisory Committee Notes to the 2006 Amendments make clear that “[w]hile
Rule 404(b) refers to the ‘accused,’ the ‘prosecution,’ and a ‘criminal case,’ it does so only in the
context of a notice requirement. The admissibility standards of Rule 404(b) remain fully applicable
to both civil and criminal cases.” Advisory Committee Notes to 2006 Amendments to Fed. R. Evid.
404.
Notably, with respect to Plaintiffs’ excessive force claim, “the question is whether the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397,109
S.Ct. 1865, 104 L.Ed.2d 443 (1989)(citations omitted). That King was known to be violent and had
previously fired upon law enforcement - facts purportedly known by Trooper Taylor before the
shooting - are part of the facts and circumstances that may be considered when determining whether
Trooper Taylor acted in an objectively reasonable manner in this case. Although there is a risk of
prejudice that may result from admitting this evidence, the Court does not find that this risk
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substantially outweighs the high probative value of this evidence. Accordingly, Plaintiffs motion
to exclude this evidence is DENIED.
Plaintiff next seeks to preclude any hearsay testimony or evidence regarding alcohol
consumption or alcoholism [DE #76, ¶3]. Plaintiffs state that the only witness arguably qualified
to offer opinions on King’s alcohol or cannabis use is Trooper Taylor’s expert Dr. Davis. Plainitffs
argue that Dr. Davis should not be permitted to testify on this subject because Trooper Taylor failed
to disclose any such opinions in Dr. Davis’ expert report and has offered no testimony regarding
King’s being under the influence of cannabis. Plaintiffs further argue that whether King was under
the influence of alcohol at the time of the shooting is not relevant to whether Trooper Taylor was
justified in shooting King.
Trooper Taylor responds that King’s history of alcoholism and drug abuse is relevant to any
damage determination in this case with respect to the issue of King’s life expectancy. Trooper
Taylor states that Dr. Hunsaker and Dr. Davis will testify as to King’s physical condition as indicated
in his autopsy. Trooper Taylor further argues that all of the information provided to Trooper Taylor
and the Boyle County deputies prior to the incident indicated that King was dangerous when
drinking. According to Trooper Taylor, evidence of intoxication or drug use in use of force cases
is proper to corroborate officer’s testimony regarding a plaintiff’s actions.
Plaintiffs’ motion is problematic for several reasons. As an initial matter, Plaintiffs’ motion
is so vague and so broad that it is difficult for the Court to make a determination on the admissibility
of the evidence Plaintiffs seek to exclude. Plaintiffs seek to exclude “hearsay testimony,” yet do not
identify any specific statements by any particular witnesses that they purport to be hearsay. Plaintiffs
also complain of the adequacy of Trooper Taylor’s disclosure of the opinions of Dr. Davis, yet do
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not provide the Court with a copy of Dr. Davis’ expert report, nor any pages from Dr. Davis’
deposition testimony. Moreover, Plaintiffs do not cite any case law supporting their broad request
until their reply, a practice that unfairly deprives Trooper Taylor of the opportunity to respond.
Plaintiffs’ motion simply does not carry the burden of showing that this evidence is “clearly
inadmissible on all potential grounds.” Although it is possible that Plaintiffs’ motion has some
merit, the Court does not have enough information in front of it at this time to determine whether
this is the case. Thus, Plaintiffs’ motion in limine to exclude any hearsay testimony or evidence
regarding alcohol consumption or alcoholism is DENIED. If appropriate, Plaintiffs may renew their
motion at trial.
Next, Plaintiffs seek to exclude “any testimony by any witness, including but not limited to
Deputy Wilcher, regarding hearsay statements about Mr. King and his weapons in his home” [DE
#76, ¶ 4]. Plaintiffs argue that these statements are not only inadmissible hearsay, but are also
irrelevant, as they occurred after Trooper Taylor shot King. However, Plaintiffs do not point to any
specific statements or testimony that they seek to exclude. Given the vague nature of Plaintiffs’
motion, the Court is unable to determine whether the evidence Plaintiffs seek to exclude is hearsay.
Nor may the Court evaluate and weigh the probative value and prejudicial effect, if any, of the
evidence. Accordingly, this portion of Plaintiffs’ motion will be DENIED. Should Plaintiffs have
an objection to any specific evidence on hearsay or relevance grounds, they are free to raise those
objections at trial.
Plaintiffs next seek to exclude any evidence of King’s prior criminal history [DE #76, ¶5].
However, the Court has already determined that such evidence is admissible under Rule 404(b), to
the extent that it shows intent, knowledge and absence of mistake or accident. Evidence of King’s
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prior criminal history may be admitted, consistent with the Court’s ruling above on ¶2 of Plaintiffs’
motion. Thus, this portion of Plaintiffs’ motion is DENIED.
Next, Plaintiffs seek to exclude evidence of any OMB regulations or any Kentucky Revised
Statute regarding the use of force [DE #76, ¶6]. Plaintiffs argue that the issue in this case is whether
Trooper Taylor acted reasonably, not whether he complied with any particular rule or regulation of
the Kentucky State Police or any Kentucky Revised Statute. In their reply, Plaintiffs re-assert the
arguments set forth in their motion in limine to exclude the testimony of Lt. Bobby Day [DE #75]
as further support for this portion of their motion in limine. However, the Court finds that, for the
reasons set forth more fully in the Court’s Order denying Plaintiffs’ motion in limine to exclude the
testimony of Lt. Day [DE #86], this evidence is relevant and admissible. Thus, this portion of
Plaintiffs’ motion is DENIED.
Plaintiffs next seek to exclude any evidence or testimony regarding letters complimenting
Trooper Taylor that are contained in his personnel file [DE #76, ¶7], as well as any evidence or
testimony regarding Trooper Taylor’s receipt of a medal during the course of his tenure with the
Kentucky State Police [DE #76, ¶8]. Plaintiffs argue that this evidence is irrelevant, has little
probative value, and has the potential to confuse the jury and mislead the issues. Trooper Taylor
responds that Plaintiffs have placed Trooper Taylor’s character directly at issue in this case, thus
Trooper Taylor’s reputation and character are relevant in showing how he conducts himself as a law
enforcement officer throughout his career. While it is possible that Plaintiffs’ motion has merit,
there is not enough information before the Court to determine the admissibility of this evidence. The
parties have not attached copies of the letters in question, nor have they provided any further
information regarding the information contained in the letters or the circumstances surrounding
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Trooper Taylor’s award. Thus, at this point, the Court does not have sufficient information to
determine that this evidence is not admissible for any purpose. Accordingly, these portions of
Plaintiffs’ motion are DENIED.
Should Plaintiffs have an objection to any specific evidence on
relevance grounds, they are free to raise those objections at trial.
The next portion of Plaintiffs’ motion seeks to exclude evidence or testimony that Trooper
Taylor was not indicted by the Commonwealth’s Attorney’s Office [DE #76, ¶9]. Plaintiffs argue
that this evidence is neither relevant nor admissible, as the fact that a grand jury may or may not have
chosen to indict Trooper Taylor does not answer the questions to be resolved by the jury in this case.
Plaintiffs argue that this civil case raises different issues of fact and law than those raised before the
criminal grand jury. According to Plaintiffs, this evidence has little probative value, yet has the
potential to be severely prejudicial. Trooper Taylor responds that the fact that the grand jury did not
indict Trooper Taylor is further evidence that he acted in good faith and without malice, which is
directly relevant to the question of punitive damages. However, the Court agrees with Plaintiffs that
this evidence has little probative value in this case. The grand jury evaluated the facts to determine
whether there was probable cause for a murder charge, a task that is much different from the jury’s
task in this case. In contrast, introducing evidence or testimony that the grand jury did not indict
Trooper Taylor is very likely to confuse or mislead the jury. Accordingly, the Court finds that this
evidence should be excluded under FRE 403. Thus, this portion of Plaintiffs’ motion is GRANTED.
Plaintiffs next seek to exclude evidence or testimony of the contents of the criminal
complaint and arrest warrant that were being served on King on the night of the incident [DE #76,
¶10]. Plaintiffs argue that, because Trooper Taylor testified that he did not review the criminal
complaint or arrest warrant, he could not have made decisions based on the contents of those
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documents. Plaintiffs also argue that this evidence is irrelevant and is inadmissible under FRE 404
as evidence of other crimes. Trooper Taylor argues that his knowledge of the danger posed by King
from the fact that his ex-wife had taken out an EPO against him as a result of King’s violent actions
taken against her are relevant to Trooper Taylor’s state of mind and the reason he accompanied six
sheriffs’ deputies to serve an arrest warrant and EPO on a single man. According to Trooper Taylor,
the fact that he did not directly read the arrest warrant and EPO is irrelevant, as the information
contained therein was relayed to Trooper Taylor by the Boyle County Sheriff’s deputies.
As noted above, in determining whether Trooper Taylor’s actions were “objectively
reasonable,” whether Trooper Taylor acted negligently and/or whether punitive damages are
appropriate, the jury is entitled to know all of the facts and circumstances confronting Trooper
Taylor, including the facts surrounding the EPO and arrest warrant being served on King. Although
Plaintiffs argue that this evidence should be excluded under Rule 404(b), this evidence comes within
Rule 404(b)(2)’s permitted uses, including, but not limited to, motive, intent, knowledge, absence
of mistake or lack of accident. For all of these reasons, this portion of Plaintiffs’ motion is DENIED.
Next, Plaintiffs seek to limit the testimony of Trooper Taylor’s expert, Dr. Greg Davis, to
those areas outlined in his report [DE #76, ¶11]. Plaintiffs state that, during his deposition, the
Defendant attempted to elicit testimony from Dr. Davis outside the scope of his report, including
issues regarding alcohol use, cannabis use, other health conditions, life expectancy, and ballistics.
Plaintiffs argue that, because none of these areas were listed in Dr. Davis’ expert report, and because
Dr. Davis admitted that he was not qualified in ballistics, Trooper Taylor should not be allowed to
introduced testimony on these subjects at trial. Trooper Taylor disputes Plaintiffs’ attack on Dr.
Davis’ qualifications and asserts that Dr. Davis is qualified to offer his expert opinion regarding
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terminal ballistics, pathology and toxicology. Regardless, Plaintiffs have failed to provide the Court
with sufficient information - such as a copy of Dr. Davis’ expert report or copies of pages from his
deposition - to permit the Court to meaningfully evaluate the admissibility of Dr. Davis’ testimony.
Accordingly, this portion of Plaintiffs’ motion is DENIED. Should Plaintiffs have an objection to
any specific areas of Dr. Davis’ testimony, they are free to raise those objections at trial.
Finally, Plaintiffs seek to exclude any testimony of any witness that involves speculation or
conjecture, including, but not limited to, speculation from fact witnesses about what happened before
or after the shooting [DE #76, ¶12]. As an example, Plaintiffs state that Trooper Taylor’s counsel
attempted to elicit testimony from Trooper Bowman that King’s dog may have jumped up on the
couch and jostled his body after King was shot. However, the admissibility of such evidence is
precisely the type of question that is better addressed at trial, where the Court may resolve questions
of foundation, relevancy and potential prejudice in proper context. Thus, this portion of Plaintiffs’
motion is DENIED. To the extent that Plaintiffs have an objection to specific evidence or testimony,
those objections may be raised at trial.
IV.
CONCLUSION
Accordingly, the Court, being fully and sufficiently advised, hereby ORDERS that Plaintiffs’
motion in limine to exclude various evidence at trial [DE #76] is GRANTED IN PART and
DENIED IN PART as set forth above
This May 24, 2013
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