West v. City of Paris et al

Filing 65

MEMORANDUM OPINION & ORDER: (1) GRANTING dft City of Paris' 43 MOTION in Limine; (2) GRANTING IN PART & DENYNG PART West's 44 MOTION in Limine. Signed by Judge Joseph M. Hood on 2/10/15.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
MARK WEST,

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Plaintiff,
v.
CITY OF PARIS, KY, et al.,
Defendants.

Civil Case No. 13-cv-193-JMH

MEMORANDUM OPINION AND ORDER

***
This matter is before the Court upon the Motions in Limine
of Defendant City of Paris, Kentucky [DE 43] and Plaintiff Mark
West [DE 44].
is

adequately

Responses have been filed [DE 53, 59].
advised,

and

these

Motions

are

The Court
ripe

for

consideration.
I.
In its Motion, the City of Paris first asks the Court to
exclude any evidence of prior disciplinary actions or complaints
against Officer Michael Dempsey.

Plaintiff stipulates that this

evidence regarding Dempsey is not relevant to his claims against
the remaining defendant.

Accordingly, Defendant’s Motion will

be granted in this regard.
II.
Next, the City of Paris requests that the Court exclude
evidence of the fact that Plaintiff was not indicted on charges

of

assault

in

the

third

degree,

resisting

intoxication, or terroristic threatening.

arrest,

alcohol

Defendant argues that

this evidence is irrelevant because the issue at trial is not
the legality of the arrest in hindsight but whether the jury
believes

that

the

type

and

degree

of

force

used

against

Plaintiff was reasonably necessary to effect what an officer
believed to be a lawful arrest.

The Court agrees.

In order

to evaluate the privileged use of force under KRS § 503.090, the
finder

of

fact

must

make

a

determination

concerning

the

officer’s beliefs at the time he “is making or assisting in
making an arrest.”

The grand jury’s subsequent decision with

regard to the propriety of certain charges is evidence only of
the grand jury’s view of the arrest in hindsight, not evidence
of the officer’s belief at the moment of the use of force and
the arrest.

Thus, it has no tendency to make a fact more or

less probable than it would be without the evidence and is of no
consequence

in

determining

the

action.

The

evidence

irrelevant and is inadmissible, and it shall be excluded.

is
See

Fed. R. Evid. 401, 402.
III.
In his motion, Plaintiff first objects to the introduction
of evidence related to his blood alcohol content on June 23 and
24,

2012,

and

argues

that

evidence

related

to

the

blood

chemistry lab produced in discovery should be excluded pursuant
2

to Fed. R. Civ. P. 37(c)(1) because Defendant has failed to
comply with its obligation under Rule 26(a)(2)(B) to identify an
opinion witness or produce an opinion report from such a witness
to support its introduction.

Defendant City of Paris indicates,

however, that it intends to call Dr. Patricia Swiney to testify
at trial with respect to those test results. Dr. Swiney was not
specially retained for the purpose of providing expert opinion
testimony

at

the

trial

of

this

matter;

rather,

she

was

the

physician who treated Plaintiff in the emergency room of the
Bourbon Community Hospital following his June 23, 2012 arrest.
Defendant explains that it was Dr. Swiney who ordered a test to
measure the level of alcohol in Plaintiff’s blood to ensure that
any medications she might administer were not contraindicated by
the level of Plaintiff’s intoxication and for other purposes
related to his treatment, and, thus, she may testify as to the
results of that report.
the

reporting

testifies

about

A treating physician is not subject to

requirements
the

of

nature

FRCP
and

26(a)(2)(B)

type

of

when

she

treatment

she

administered or gives opinions she formed in the course and
scope of a patient’s treatment.

Fielden v. CSX Transportation,

Inc., 482 F.3d 866, 869-70 (6th Cir. 2007).

Thus, Defendant

was not required to produce a report from Dr. Swiney under Fed.
R. Civ. P. 26(a)(2)(B).

3

Rather, where the scope of opinion testimony is so limited,
a party must identify the physician and provide a summary of the
facts and opinions to which the physician witness is expected to
testify

pursuant

to

Fed.

R.

Civ.

P.

26(a)(2)(C).

That

disclosure must be made, absent a stipulation or a court order,
at least 90 days before the trial date.

Here, there is no

suggestion that Dr. Swiney will testify to an opinion concerning
Plaintiff’s blood alcohol content level, only the results of the
test.

Since

Defendant

does

not

seek

to

elicit

opinion

testimony, no disclosure or summary was required under Fed. R.
Civ.

P.

26(a)(2)(C),

and

no

sanction

is

necessary.1

This

evidence will not be excluded.
IV.
Finally,
should

not

Plaintiff
be

admitted

argues

that

into

his

evidence

past
at

criminal
trial

as

record
it

is

irrelevant to issues related to the amount of force used at the
time of his arrest in the matter at bar. Plaintiff argues that
1

Alternatively, this test result and the information to be gleaned from it
should come as no surprise to Plaintiff since he was the subject of the test
and produced her records in discovery. He lists those treatment records on
his Exhibit List for trial.
Further, it comes as no surprise that he will
seek to admit those treatment records since he is seeking relief for the
injuries for which he was treated. Nor is it surprising that Defendant has
identified Dr. Swiney in its Witness List, filed on January 16, 2015, for her
testimony “regarding the results of the blood alcohol test she ordered as
part of her treatment and as reflected in the hospital records,” since his
level of intoxication would be relevant to the jury’s evaluation of what
officers encountered at the scene of the incident. Even if the Court were to
conclude that a summary of the facts and opinions of Dr. Swiney was required
to be made under Fed. R. Civ. P. 26(a)(2)(C) because her testimony might be
considered a combination of fact and opinion, the Court could (and would)
enter an order deeming the January 16, 2015, disclosure in Defendant’s
Witness List timely made in this instance.

4

any

prior

criminal

record

that

he

may

have

is

immaterial,

irrelevant, and inadmissible for any purpose in this matter.
Defendant concedes the issue and agrees that it will not seek to
introduce evidence of Plaintiff’s criminal record prior to June
23, 2012, unless Plaintiff opens the door for the admission of
such evidence.

Accordingly, Plaintiff’s motion is granted and

evidence of his past criminal record will be excluded, save for
its introduction as appropriate if he opens the door for the
admission of such evidence.
Accordingly, for all of the reasons stated above, IT IS
ORDERED:
(1)

That the Motion in Limine of Defendant City of Paris

[DE 43] is GRANTED and
(2)

That Plaintiff Mark West’s Motion in Limine [DE 44] is

GRANTED IN PART and DENIED IN PART.
This the 10th day of February, 2015.

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