Leath v. Webb et al
Filing
84
MEMORANDUM OPINION & ORDER: re Defendant's 39 Motion in Limine; 1) The motion to exclude liability insurance to the dfts is GRANTED; 2) Motion to exclude any Leath's acquittal on assault charge is DENIED AS MOOT; 3) Motion to exclude Off icer David Duncan's write-up or disciplinary records is DENIED AS MOOT; 4) Motion to exclude Leath's mental state or psychological injury is GRANTED; 5) Motion to exclude Leath's preliminary vital signs is DENIED AS MOOT. Signed by Judge Joseph M. Hood on 9/17/2018.(JJ)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DARRELL LEATH,
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)
)
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)
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Plaintiff,
v.
RANDALL WEBB, et al.,
Defendants.
Civil Case No.
5:17-cv-38-JMH
MEMORANDUM OPINION
AND ORDER
***
This matter is set for trial beginning on October 30, 2018.
Now before the Court is Defendants’ combined Motion in Limine.
[DE 39].
Defendant previously moved to exclude multiple items of
evidence at trial, including: 1) mention of any insurance available
to the Defendants; 2) evidence of Leath’s acquittal on the assault
charges; 3) evidence of Officer David Duncan’s “write-ups” or
disciplinary
records;
4)
evidence
of
Leath’s
complaints
of
psychological injury; and 5) evidence pertaining to taking Leath’s
preliminary vital signs.
[See DE 39, p. 1].
Defendants’ Motion in Limine was filed prior to the Court’s
Memorandum Opinion and Order [DE 63] granting in part and denying
in
part
the
Memorandum
Defendants’
Order
and
Motion
Opinion
for
granted
Summary
Judgment.
Defendants’
Motion
The
for
Summary Judgment on all counts except for Leath’s claims of
1
excessive force (Count III), as well as assault (Count IV) and
battery (Count V) under Kentucky common law, against Officer Webb
for the alleged throat grab.
As a result, Officer Webb is the
only Defendant remaining in this action.
The Plaintiff has
responded to the Defendants’ combined Motion in Limine [DE 43] and
Defendants replied [DE 46].
Having been fully briefed, and the
Court being otherwise sufficiently advised, this motion is ripe
for review.
1)
Motion to Exclude Evidence of Defendant’s Liability
Insurance
Defendants
moved
to
exclude
any
evidence,
reference,
or
argument, direct or indirect, pertaining to the existence or
availability of any liability insurance pursuant to Fed. R. Evid.
411.
By its terms, FRE 411 prohibits “[e]vidence that a person
was or was not insured against liability . . . .”
411.
Fed. R. Evid.
Additionally, Leath agrees that “evidence of liability
insurance is inadmissible pursuant to FRE 411 . . . .”
1].
[DE 43, p.
Accordingly, the motion to exclude any evidence, reference,
or argument pertaining any liability insurance available to the
Defendants is GRANTED.
2)
Motion to
Assault Counts
Defendants
Exclude
moved
to
Evidence
exclude
any
of
Leath’s
Acquittal
on
testimony,
evidence,
or
reference to Leath’s acquittal on three counts of Assault in the
First Degree.
Leath was initially charged with disorderly conduct
2
and public intoxication arising from the arrest at the University
of Kentucky Chandler Medical Center, where the alleged throat grab
occurred.
Leath was charged with Assault in the Third Degree
arising from his subsequent interaction with officers at the
Fayette County Detention Center and Good Samaritan Hospital. Leath
was acquitted on all three counts of Assault in the Third Degree.
The parties’ arguments focus on whether evidence of Leath’s
acquittal is should be excluded based on the substantive counts of
false arrest and malicious prosecution.
But here, the Court has
subsequently
for
granted
summary
judgment
the
Defendants
Leath’s claims of false arrest and malicious prosecution.
on
The
Court withholds any opinion to the extent that this evidence is
presented for another purpose in this matter.
to
exclude
any
testimony,
evidence,
or
As such, the motion
reference
of
Leath’s
acquittal on assault charges is DENIED AS MOOT.
3)
Motion to Exclude Evidence of Officer David Duncan’s
Write-Ups or Disciplinary Records
Defendants moved to exclude any evidence relating to Officer
David Duncan’s write-ups and disciplinary record pertaining to his
work as a police officer for the University of Kentucky Police
Department.
All Leath’s claims against Officer David Duncan were
resolved by the Court’s Memorandum Order and Opinion [DE 63].
The
parties’ arguments in the Motion in Limine and Response focus on
3
whether this evidence should be excluded based on the substantive
claims against Duncan that have since been dismissed.
Still, Duncan is included on both parties’ witness lists as
a potential witness at trial.
[See DE 71; DE 78].
The Court
withholds any opinion to the extent that this evidence is presented
for another purpose in this matter.
Thus, at this juncture, the
motion
of
to
exclude
any
evidence
Duncan’s
write-ups
or
disciplinary records is DENIED AS MOOT.
4)
Motion to Exclude testimony, evidence, or reference to
Leath’s a potential psychological injury
Defendants
moved
to
exclude
any
testimony,
reference to Leath’s reported mental health.
evidence,
or
At his deposition,
Leath testified that he had suffered embarrassment and emotional
suffering as a result of occurrences on the night of his arrest.
[DE 37-1, pp. 85-86].
Leath’s testimony about his embarrassment
or emotional distress is not specific to the alleged throat grab,
however, because Leath asserts that his emotional suffering is a
result of multiple instances of conduct taking place throughout
his interaction with officers on January 2nd.
[See id. at 86].
For instance, Leath stated that, “I have issues with the--the
officers wanting to touch me and handle me all the time.
course it is emotional.
period.”
[Id.].
It’s an emotional state to be locked up,
Leath has not submitted any expert medical
testimony to support his assertion of emotional injury.
4
So of
Leath agrees that introducing evidence of a diagnosis of
post-traumatic stress disorder (PTSD) or other specific mental or
emotional disorder would require expert testimony.
5].
[See DE 43, p.
Leath argues, however, that lay jurors may determine that
specific instances of conduct caused Leath emotional distress.
[See id.].
Alternatively, Defendants assert that the main problem
that Leath has in the present case is proving causation because
Leath’s alleged emotional distress did not occur because of one
specific instance of conduct but instead, as Leath argues, due to
multiple instances of misconduct by officers.
[See DE 46, pp. 2-
4; see also DE 43, p. 5].
Initially, it is important to note that the scope of this
case was substantially limited by the Court’s ruling in the
Memorandum Order and Opinion.
As previously discussed, the only
claims remaining are claims of excessive force and assault and
battery under state law arising from Webb’s alleged grab of Leath’s
throat and mouth.
As such, to recover damages for emotional
distress, Leath will have to prove that any alleged damages
occurred due to the alleged throat grab.
A plaintiff can recover compensatory damages in the context
of a § 1983 excessive force claim only if he can prove proximate
cause, or that an actual injury was caused by denial of his
constitutional right.
Ealy v. City of Dayton, No. 95-3969, 1996
5
WL 724368 at *3 (6th Cir. Dec. 16, 1996); Horn v. Madison Cty.
Fiscal Court, 22 F.3d 653, 659 (6th Cir. 1994).
A plaintiff may prove an emotional injury without medical
support but “damages for mental and emotional distress will not be
presumed, and must be proven by ‘competent evidence.’”
Turic v.
Holland Hosp., Inc., 85 F.3d 1211, 1215 (6th Cir. 1996) (quoting
Carey v. Piphus, 435 U.S. 247, 264 n.20 (1978).
To prove an
emotional injury without medical support, a plaintiff must bolster
their claim of an emotional injury with additional evidence such
as physical manifestations of the emotional injury or witness
testimony that the plaintiff appeared to suffer from emotional
distress.
See Carey v. Piphus, 435 U.S. 247, 264 n.20 (1978) (“We
use the term ‘distress’ to include mental suffering or emotional
anguish. Although essentially subjective, genuine injury in this
respect
may
be
evidenced
by
one's
conduct
and
observed
by
others.”); Turic, 85 F.3d at 1215 (“Witnesses testified that Turic
was extremely upset and frightened after being discharged, and
that she ran from the meeting in tears. . . . Further, Turic
testified that she continued to suffer nightmares, weight loss
during her pregnancy, and excessive nervousness.”); Meyers v. City
of Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994) (“[Plaintiff’s]
psychological injuries had physical effects: he lost 10 pounds and
suffered from insomnia. He also experienced stomach problems for
which he was prescribed medication.”).
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Thus, in the absence of
medical evidence, a plaintiff must present proof of physical
manifestations of their emotional injury.
Additionally, in order for lay jurors to be able to understand
and observe a plaintiff’s emotional injury without expert medical
testimony or medical evidence, the alleged emotional injury must
arise
from
plaintiff[]
a
“single,
can
trace
concrete
[his]
incident
alleged
from
injuries.”
which
[the]
Kovacic
v.
Ponstingle, No. 1:05-cv-2746, 2014 WL 4715859, at *4 (N.D. Ohio
Sept. 22, 2014).
Otherwise, lay jurors will have difficulty
determining to what extent a plaintiff was harmed by a particular
injury.
See Romaine v. St. Joseph Health Sys., 541 F. App’x 614
(6th Cir. 2013); Rodgers v. Fisher Body Div., General Motors Corp.,
739 F.2d 1102, 1108 (6th Cir. 1984); Myers v. Illinois Ctr. R.
Co., 629 F.3d 639, 643 (7th Cir. 2010) (“[W]hen there is no obvious
origin to an injury and it has ‘multiple potential etiologies,
expert testimony is necessary to establish causation’”) (quoting
Willis v. Amerada Hess Corp., 379 F.3d 32, 46–47 (2d Cir. 2004)).
Here, the issue with Leath’s claim that he suffers from
psychological injury is problematic because he cannot establish
that
the
alleged
throat
grab
by
Officer
Webb
caused
his
psychological or emotional injuries. Leath argues that the present
case is distinguishable from Kovacic because the jury can obviously
observe that “being choked, held against his will while [being]
examined without his consent, and falsely charged with three
7
felonies, caused him emotional distress.”
[See DE 43, p. 5].
The
issue, of course, is that now only one of those actions, the
alleged throat grab and choking, is relevant to this case.
assuming
for
the
sake
of
argument
that
Leath
can
Thus,
establish
emotional injuries, without medical expert testimony, it will be
difficult for a lay jury to determine to what extent his emotional
injuries were caused by the throat grab, as opposed to the incident
at Good Samaritan, or something unrelated to this case altogether.
Ultimately,
alleged
there
emotional
are
multiple
injuries
and
potential
expert
causes
medical
for
Leath’s
testimony
is
required to demonstrate that Leath suffered emotional distress as
a result of the alleged throat grab that is relevant to this case.
Leath’s assertion that he suffered from psychological injury
or emotional distress as a result of the throat grab without any
evidence
of
physical
manifestations
of
emotional
injury
or
supporting witness testimony is not a matter of common knowledge
that lay jurors can consider without expert medical testimony.
As
such, the motion to exclude any testimony, evidence, or reference
to Leath’s reported mental health or any specific mental or
emotional disorders is GRANTED.
5)
Motion to Exclude Evidence Pertaining to Taking Leath’s
Vital Signs at the University of Kentucky Good Samaritan
Hospital
Defendants moved to exclude any evidence pertaining to the
taking of Leath’s vital signs. All claims brought by Leath against
8
nurses at the University of Kentucky Good Samaritan Hospital
arising from taking his vital signs were resolved in the Court’s
Memorandum Order and Opinion [DE 63].
Furthermore, the alleged
throat grab that is relevant to the remaining claims occurred well
before Leath was taken to Good Samaritan.
Thus, the motion to
exclude any evidence pertaining to taking Leath’s vital signs is
DENIED AS MOOT.
Accordingly, for the foregoing reasons, IT IS ORDERED:
1) The motion to exclude any evidence, reference, or argument
pertaining to any liability insurance available to the Defendants
is GRANTED;
2) The motion to exclude any testimony, evidence, or reference
of Leath’s acquittal on assault charges is DENIED AS MOOT;
3) The motion to exclude any evidence of Officer David
Duncan’s write-ups or disciplinary records is DENIED AS MOOT;
4) The motion to exclude any testimony, evidence, or reference
to
Leath’s
reported
mental
state
or
psychological
injury
is
GRANTED; and
5) The motion to exclude any evidence pertaining to taking
Leath’s preliminary vital signs at the University of Kentucky Good
Samaritan Hospital is DENIED AS MOOT.
This the 17th day of September, 2018.
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