St. Romain v. Governor's Office of Homeland Security and Emergency Preparedness et al

Filing 81

RULING granting in part and denying in part 58 Motion in Limine. The 62 Motion in Limine, 63 Motion in Limine, and 65 Motion in Limine are DENIED. The 64 Motion in Limine is GRANTED. Signed by Judge Shelly D. Dick on 6/6/2017. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JOSEPH ST. ROMAIN, JR.

CIVIL ACTION

VERSUS

14-660-SDD-RLB

GOVERNOR’S OFFICE OF HOMELAND
SECURITY AND EMERGENCY
PREPAREDNESS, ET AL.

RULING
The following pretrial evidentiary Motions are before the Court:
Plaintiff’s Motion in Limine;1
Defendants Sherriff Jason Ard and Major Jim Brown’s Motion in Limine to Exclude
Evidence or Testimony of Claims That Have Been Dismissed;2
Defendants Sherriff Jason Ard and Major Jim Brown’s Motion in Limine to Exclude
Any Evidence of Disciplinary Action Taken Against Major Jim Brown;3
Defendants Sherriff Jason Ard and Major Jim Brown’s Motion in Limine to Exclude
Any Evidence or Testimony Regarding Joseph St. Romain Jr.'s Lost Wages;4 and
Defendants Sherriff Jason Ard and Major Jim Brown’s Motion in Limine to Exclude
Any Evidence or Testimony Regarding Joseph St. Romain Jr.'s Medical Expenses.5
The background facts are set out in this Courts prior Rulings.6 The Court will
address each Motion seriatim.

1

Rec. Doc. 58. Opposition at Rec. Doc. 78.
Rec. Doc. 62. Opposition at Rec. Doc. 74.
3
Rec. Doc. 63. Opposition at Rec. Doc. 72.
4
Rec. Doc. 64. Opposition at Rec. Doc. 71.
5
Rec. Doc. 65. Opposition at Rec. Doc. 75.
6
Rec. Docs. 16, 52, and 54.
2

1

I.

PLAINTIFF’S MOTION IN LIMINE (Rec. Doc. 58)
Plaintiff moves to exclude the following evidence:


Arrests and incident reports by law enforcement prior to the October 3, 2013
arrest which is the subject matter of this litigation;7



Arrests and incident reports by law enforcement after the October 3, 2013
arrest;8



Plaintiff’s Nolo Contendere plea regarding the October 3, 2013 arrest which is
the subject matter of this litigation (Defendant’s Exhibit DD);



Evidence and testimony not disclosed or produced by Sheriff Ard; and



Evidence and testimony not disclosed or produced by Major Jim Brown.

A. Arrests and Incidents Reports before the October 3, 2013 Arrest
Plaintiff moves to exclude evidence of law enforcement actions involving the
Plaintiff which arose prior to the subject arrest date of October 3, 2013 on the grounds of
relevance9, hearsay10 and impermissible character evidence11. Defendants’ counter that
the evidence is relevant to the Plaintiff’s claim for damages, is not evidence offered for
the truth of the matter asserted and, thus, not hearsay, or alternatively the documents are
public records and, thus, are an exception to the rule against hearsay, and the evidence
is probative of a material issue other than character.

7

Plaintiff specifically refers to evidence relating to charges and an arrest in December of 2007 and
Defendants’ Exhibits I, K, L, M, N, O, P, X and AA, identified by Defendants in the Pretrial Order (Rec. Doc.
58, p. 1).
8
Plaintiff specifically refers to Defendants’ Exhibits F, H, J, R, S, T, Y, CC, and II, identified by Defendants
in the Pretrial Order (Rec. Doc. 58, p. 2).
9
FRE 401, 403.
10
FRE 802.
11
FRE 404.

2

The Plaintiff’s FRE 401/403 relevance and undue prejudice objection is referred to
the time of trial. As to the Plaintiff’s motion for exclusion on the grounds that the evidence
constitutes impermissible character evidence, FRE 404(b)(1) provides that “[e]vidence 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.”
However, other acts or evidence may be admissible “for another purpose”. FRE 404(b)(2).
The other purposes identified in the rule are illustrative not exclusive.12 In this case, the
Defendants argue that the Plaintiff’s prior acts are admissible to rebut or defend his
damages claim. A two part inquiry is required. “First, it must be determined that the [other
acts] evidence is relevant to an issue other than the defendant's character. Second, the
evidence must possess probative value that is not substantially outweighed by its undue
prejudice”.13
The parties referred to exhibits identified on the Joint Pretrial Order however failed
to provide the Court with the evidence sought to be excluded. The Court declines to scour
the record in an effort to locate the subject exhibits in the chance that they were offered
in support or opposition to a prior Motion. Without the exhibits made the subject of the
Motion, the Court is unable to make the two part inquiry required. Hence, the Motion to
exclude arrests and incidents reports pre-dating October 3, 2013, pursuant to FRE 404,
is denied without prejudice to re-urging at the time of trial.
Finally, Plaintiff objects on the grounds of hearsay. As out of court statements,
reports of prior incidents and arrests are hearsay unless not offered for the truth or fall

12

“[E]vidence of other acts is admissible to prove, inter alia, ‘motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.’ ” U.S. v. Cervantes, 706 F.3d 603, 615 (5th
Cir. 2013).
13
Id.

3

under a hearsay exception. The Defendants’ argument that the prior law enforcement
incident reports and arrest records are ‘not offered for the truth of the matter asserted’
lacks persuasiveness. However, the records fall within the FRE 803(8) public records
exception. Rule 803(8) covers “a record or statement of a public office” offered in a civil
action “if it sets out . . . factual findings from a legally authorized investigation” unless the
opponent shows that “the sources of information or other circumstances indicate a lack
of trustworthiness”. FRE 803(8(A)(iii).
Opinions and conclusions, as well as facts, are covered by [the] Rule.14 A plain
reading of the rule, and Fifth Circuit guidance, direct that the subject reports are
“presumed not to be excluded under the hearsay rule unless there are indications of
untrustworthiness.”15 Plaintiff has failed to make the requisite showing that the reports
lack trustworthiness. Accordingly, the Plaintiff’s motion to exclude as hearsay is denied
without prejudice to re-urging the objection at the time of trial.
B. Arrests and Incident Reports after the October 3, 2013 Arrest
Plaintiff moves to exclude evidence of law enforcement actions involving the
Plaintiff which arose after the subject arrest date of October 3, 2013 on the grounds of
relevance16 and inadmissible character evidence17.
Three subsequent incidents are at issue: 1) November 19, 2013 arrest in the 21st
JDC for Violation of a Protective Order18 and Stalking19 and 2) a December 2014 arrest
in Avoyelles parish and a March 2015 conviction following a plea of guilty to the charge

14

Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1305 (5th Cir.1991), citing Beech Aircraft Corp. v.
Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 450, 102 L.Ed.2d 445 (1988).
15
Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1305 (5th Cir.1991).
16
FRE 401, 403.
17
FRE 607, 608, 609.
18
La. R.S. 14:79.
19
La. R.S. 14:40.2.

4

of simple battery.20 Plaintiff moves to exclude the 2 subsequent arrests and simple battery
conviction21 on the grounds that the evidence is impermissible character evidence
prohibited under FRE 608 and 609. Plaintiff asserts, and the Defendants do not dispute,
that the March 2015 conviction was “set aside” pursuant to a Louisiana procedural
mechanism codified in Louisiana’s Code of Criminal Procedure, Article 894B. Hence,
Plaintiff urges exclusion pursuant to FRE 609(c), which provides that evidence of a
conviction “subject to a pardon, annulment, certificate of rehabilitation or other equivalent
procedure based on a finding that the person has been rehabilitated” is not admissible to
attack credibility of the witness.
Federal Rule of Evidence 608(b) provides that “[e]xcept for a criminal conviction
under Rule 609 extrinsic evidence is not admissible to prove specific instances of a
witness's conduct in order to attack or support the witness's character for truthfulness.
But the court may, on cross-examination, allow them to be inquired into if they are
probative of the character for truthfulness or untruthfulness.” FRE 609 permits admission
of prior convictions for crimes punishable by death or more than one year in prison or for
crimes, regardless of punishment, involving dishonesty or false statements as an element
of the crime.
The Defendants concede that they will not offer the subject evidence as evidence
of the Plaintiff’s character for truthfulness. However, Defendants urge that the evidence
is probative of “the veracity of [the Plaintiff’s] alleged damages.” The Court is
unpersuaded that a subsequent arrest for violation of a protective order and stalking is

20

Plaintiff argues that the conviction was set aside pursuant the Louisiana Code of Criminal Procedure
Article 894B after the Plaintiff satisfactorily completed supervised probation without violation of the terms.
(Rec. Doc. 58-1, pp. 8-9).
21
Id.

5

probative on the issue of the Plaintiff’s damages. The evidence of the November 19, 2013
arrest in the 21st JDC shall be excluded and the Plaintiff’s Motion in Limine as to the
November 2013 arrest is GRANTED.
As to the March 2015 conviction for simple battery, in view of the strict prohibitions
against extrinsic evidence to attack character22 and against admitting convictions which
have been procedurally set aside on findings of rehabilitation,23 the Court finds the
prejudicial effect outweighs the probative value of the evidence. The evidence of the
December 2014 arrest in Avoyelles Parish and March 2015 of simple battery shall be
excluded and the Plaintiff’s Motion in Limine as to this evidence is GRANTED.
The Defendants fail to persuade the Court that the evidence of Plaintiff’s November
19, 2013 arrest in the 21st JDC for Violation of a Protective Order and Stalking, which
remains unprosecuted, is probative on the issue of damages. In any event the prejudice
outweighs any marginal probative value. Plaintiff’s Motion in Limine as to this evidence is
GRANTED.
C. Plaintiff’s Nolo Contendere plea regarding the October 3, 2013 arrest
which is the subject matter of this litigation
Moving for exclusion of his nolo contender plea24 to the charge that is the subject
of this case, Plaintiff relies on FRE 410 which provides that a plea of nolo contender is
not admissible “against the defendant who made the plea” in a civil of criminal matter.
The Plaintiff in this civil case was the “defendant who made the plea”. By the plain reading
of FRE 410 the plea is thus inadmissible in this civil case.

22

FRE 608(b).
FRE 609(c) deems inadmissible convictions which are the subject of the procedural equivalent of a
“pardon, annulment, [or] certificate of rehabilitation”. The Court notes that a finding of satisfactory
completion of supervision could be considered a finding of rehabilitation, but the Court does not so hold.
24
Defendant’s Exhibit DD, Rec. Doc. 57.
23

6

Defendants rely on a 1988 Sixth Circuit case25 and collateral estoppel principals
enunciated in Heck v Humphrey26 in opposition to the Plaintiff’s Motion to exclude his nolo
contendere plea. Inter alia, the Plaintiff asserts §1983 claims against Sherriff Ard, in his
official capacity, and Major Jim Brown for wrongful arrest, illegal search, and use of
excessive force in connection with an arrest for violation of a protective order, to which
charge the Plaintiff entered a plea of nolo contendere. The Walker27 case is cited for the
proposition that FRE 410 is not an absolute bar against the admission of nolo contendere
pleas, particularly when the pleader brings a subsequent § 1983 claim for false arrest.
Importantly, in Walker, the issue arose in the context of the assertion of the qualified
immunity defense by the civil defendants. The Sixth Circuit held that “[nolo contendere
pleas] made by defendants and the finding of guilt and imposition of fines by [the] court
estop plaintiffs from now asserting [claims for wrongful arrest] in federal court.”28 The
Court went on to conclude its reliance on the nolo plea as the basis for estoppel was not
prohibited by FRE 410 because “the persons who entered prior no-contest pleas are now
plaintiffs in a civil action. Accordingly, use of the no-contest plea for estoppel purposes is
not ‘against the defendant’ within the meaning of Fed.R.Evid. 410.”29
As noted by the Third Circuit, “the logic of Walker seems to flow from the Supreme
Court's decision in Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d
383 (1994), where the Court held that, when a § 1983 claim amounts to a collateral attack
on a criminal conviction, the conviction or sentence must be reversed, or invalidated by

25

Walker v. Schaeffer, 854 F.2d 138 (6th Cir. 1988).
Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
27
Note 25, supra.
28
854 F.2d 138, 142 (6th Cir.1988).
29
854 F.2d 138, 143 (6th Cir.1988).
26

7

other means, before a court can entertain the claim.”30 As noted by the Defendants, the
Fifth Circuit has not addressed the FRE 410’s prohibition of the use of nolo contender
pleas as evidence in subsequent civil actions claiming wrongful arrest.
In the context of false or wrongful arrest claims, there is a tension between the
plain language of FRE 410 and Heck v. Humphrey31 estoppel principals. Heck bars §1983
false arrest claims where a finding of civil liability would implicate the underlying
conviction, but whether Heck estoppel applies to an excessive use of force claim requires
further analysis. In order for Heck to preclude the Plaintiff’s §1983 excessive force claim,
a civil judgment in the Plaintiff’s favor on this claim would have to imply invalidity of the
Plaintiff’s conviction for violation of a Protective Order.32 It does not. Hence, in this case,
as to the excessive force claim, there is no tension between FRE 410 and the rationale
underlying Heck estoppel.
This is an evidentiary motion, not a Motion to Dismiss the false arrest claims under
the Heck doctrine. In the Court’s view, reliance on Heck to oppose a motion in limine to
exclude evidence of a nolo contendere under FRE 410 is misplaced and untimely. While
the nolo contendere plea may be relevant to a Motion to Dismiss the wrongful arrest
claims pursuant to Heck, no such Motion is before the Court and the deadlines for bringing
same have lapsed. The nolo contendere plea is inadmissible as to the excessive use of
force claim under a plain reading of FRE 410 and shall, thus, be excluded at trial. The
Plaintiff’s Motion in Limine to exclude evidence of the nolo contendere plea is GRANTED.

30

Sharif v. Picone, 740 F.3d 263, 269 (3rd Cir. 2014).
Note 26, supra.
32
See, Ballard v. Burton, 444 F.3d 391, 397 (5th Cir. 2006).
31

8

D. Evidence and Testimony not disclosed or produced by Sheriff Ard
Plaintiff moves to exclude all evidence and testimony from Sherriff Ard for the
reason that he allegedly “failed to submit Initial Disclosures and failed and/or refused to
answer Plaintiff’s four (4) sets of discovery requests.”33
Plaintiff initially named the Livingston Parish Sheriff’s Office as a Defendant and,
on September 14, 2015, Sherriff Ard was substituted for LPSO.34 Sherriff Ard was named
in his official capacity only.35 The only claim remaining against Sherriff Ard is for vicarious
liability for actions of Major Brown. Defendants aptly note that disclosures and discovery
responses made by Major Brown “also apply on behalf of Sheriff Ard, as the two
defendants are essentially defending the same claims arising out of the same facts.”36
Although Plaintiff did not file a Motion to Compel, Plaintiff moves to exclude all
evidence, both documentary and testimonial, from Sherriff Ard for failure to make initial
disclosures and for failure to respond to the written discovery. Specifically, Plaintiff urges
exclusion of evidence because Ard failed to respond to four sets of written discovery and
failed to make initial disclosures when he was added as a Defendant. The Court will
address each alleged discovery violation and whether an exclusionary sanction is
warranted under the facts and circumstances of each.
1. Plaintiff’s [First] Interrogatories and Requests for Production of Documents
to the Defendants dated April, 201537
Sherriff Ard was not a Defendant at the time of this written discovery. The discovery
was answered by co-defendant Major Brown. Sherriff Ard was under no obligation to

33

Rec. Doc. 58-1, p. 10.
Rec. Doc. 24.
35
Id.
36
Rec. Doc. 78, p. 11.
37
Rec. Doc. 58-2, Exhibit G.
34

9

answer discovery propounded to another Defendant. Plaintiff’s Motion to exclude
evidence called for in this discovery is DENIED.
2. Plaintiff’s Second Set of Interrogatories and Requests for Production of
Documents dated July 2, 201538
These discovery requests were propounded to Major Jim Brown. Again, Sherriff
Ard was under no obligation to answer discovery propounded to another Defendant.
Plaintiff’s Motion to exclude evidence called for in this discovery is DENIED.
3. Plaintiff’s Second (sic) Set of Interrogatories and Requests for Production
of Documents dated October, 201539
Ard admits that he did not respond to the October, 2015 discovery requests, but
he argues that exclusion of evidence is inappropriate owing to the Plaintiff’s failure to
comply with the certification requirement of Fed. R. Civ. Proc. 37. Rule 37(d)(1)(B)
provides, that “A motion for sanctions for failing to answer or respond must include a
certification that the movant has in good faith conferred or attempted to confer with the
party failing to act in an effort to obtain the answer or response without court action.”
Notably, Plaintiff did not file a Motion to Compel discovery. Plaintiff offered no
evidence that he attempted to amicably resolve the discovery dispute.40 Given these
circumstances, and the fact that the only potential grounds for liability of Ard is vicarious,
the Court finds that the Plaintiff is not unduly prejudiced by Ard’s failure to respond to the
October, 2015 discovery. Plaintiff’s Motion to exclude evidence called for in this discovery
is DENIED.

38

Rec. Doc. 58-2, Exhibit H.
Rec. Doc. 58-2, Exhibit I.
40
The December 4, 2015 correspondence referred to by Plaintiff merely seeks allowance from the
Defendants for the lateness of the December 3, 2015 discovery. (Rec. Doc. 58-2, Exhibit K).
39

10

4. Plaintiff’s [Fourth] Interrogatories and Requests for Production of
Documents dated December 3, 201541
Sheriff Ard admits that he did not respond to the December 3, 2015 discovery, but
he avers that he was not legally required to respond to this discovery because it was
untimely propounded under this Court’s local rules. Specifically, the December 3, 2015
discovery was propounded eight days before the discovery cut off.42 Local Rule 26(d)(2)
provides, that “[w]ritten discovery is not timely unless the response to that discovery would
be due before the discovery deadline. The responding party has no obligation to respond
and object to written discovery if the response and objection would not be due until after
the discovery deadline.”
In light of this Local Rule, the Court finds that a sanction of exclusion of evidence
is unduly harsh. Plaintiff’s Motion to exclude evidence called for in this discovery is
DENIED.
E. Evidence and testimony not disclosed or produced by Major Brown
Defendants identify a video of the plaintiff as Exhibit JJ in the Parties’ Joint Pretrial
Order. Plaintiff moves to exclude the video for the failure of the Defendants to produce it
in response to Plaintiff’s Request for Production, propounded on August 20, 2015 which
called production of:
[A]ny and all audio and/or video recordings depicting the Plaintiff and/or
containing statements of the Plaintiff in your possession.43
Defendants responded as follows:
Defendant objects to this request as overly broad, unduly burdensome,
irrelevant and not reasonably calculated to lead to the discovery of
admissible evidence. Defendant further objects to the extent Request for
41

Rec. Doc. 58-2, Exhibit J.
Discovery Cut-Off December 11, 2015. Rec. Doc. 14.
43
Rec. Doc. 58-2, Exhibit L, p. 40.
42

11

Production No. 2 seeks privileged work product prepared in anticipation of
litigation. Subject to and without waiving the foregoing objections, defendant
states that the only recordings of plaintiff in his possession are those that
were previously produced to him by plaintiff or his counsel and the
deposition of plaintiff taken in this litigation.44

Clearly, the video identified as a defense exhibit was called for in discovery. After
objecting, Defendants represented “the only recordings of plaintiff in his possession are
those that were previously produced to him”.
In defense of the Motion in Limine to exclude this video evidence, Defendants cite
FRCP 26 which excepts from initial disclosure evidence that will be used “solely for
impeachment”. “Nothing in the Federal Rules permits a party to refuse to produce
impeachment evidence that is responsive to an opponent's discovery requests. The only
basis for withholding such evidence is found in Rule 26(a)(1) and (3). However, Rule 26(a)
governs disclosures only, not discovery.”45 The Plaintiffs Motion in Limine to exclude
Exhibit JJ is GRANTED.
II.

Defendants’ Motion in Limine to Exclude Evidence or Testimony of Claims
That Have Been Dismissed46
Defendants move to exclude evidence of acts of other officers who have been

dismissed from this suit. Defendants argue that the actions of the other deputies have no
bearing on the remaining claims for trial. Plaintiff opposes the Motion arguing that the
remaining “claims of false arrest and excessive force remaining against Defendant Brown
require an analysis of whether his actions were reasonable in light of the facts and

44

Id, p. 41.
Grubbs v. Winn Dixie Properties, LLC, 2015 WL 3892555, at *1 (E.D.La., 2015).
46
Rec. Doc. 62.
45

12

circumstances known to him.” 47 Plaintiff argues that “evidence of facts involving other
LPSO deputies is probative of the reasonableness and actions of Defendant Brown.”48
The Court finds that relevance determinations are best made at trial. Accordingly,
the Court defers ruling on the subject Motion in Limine to the time of trial. The Motion in
Limine to Exclude Evidence or Testimony of Claims That Have Been Dismissed (Rec.
Doc. 62) is DENIED without prejudice to urging objections at trial.
III.

Defendants’ Motion in Limine to Exclude Any Evidence of Disciplinary Action
Taken Against Major Jim Brown49
On relevance grounds, Defendants move to exclude evidence, argument, or

testimony regarding discipline of Major Jim Brown during his law enforcement career,
including evidence of “‘write ups’, suspensions, or transfers to other divisions within the
Sheriff’s office.”50 Opposing51 the Motion in Limine, Plaintiff contends that “Brown’s
employment record at LPSO may show that he was disciplined and/or demoted for use
of excessive force and/or due to his actions associated with the October 3, 2013 arrest at
issue in this litigation. Thus, evidence of post-incident discipline is clearly relevant to
liability.”52 Plaintiff further argues that “[t]his evidence would be probative of Defendant
Brown’s intent to use force or violence.”53 The Court is not persuaded that after-the-fact
discipline is probative that the act for which discipline may have been meted was
intentional. Nonetheless, as previously stated, in this Court’s view, relevancy is best
determined at trial. Accordingly, the Court defers ruling on the subject Motion in Limine to

47

Rec. Doc. 74, p. 2.
Id. at p. 3.
49
Rec. Doc. 63. Opposition at Rec. Doc. 72.
50
Rec. Doc. 63-1, p. 2.
51
Rec. Doc. 72.
52
Id., p. 2.
53
Id., p. 3.
48

13

the time of trial. The Motion in Limine to Exclude Any Evidence of Disciplinary Action
Taken Against Major Jim Brown (Rec. Doc. 63) is DENIED without prejudice to urging
objections at trial.
IV.

Defendants’ Motion in Limine to Exclude Any Evidence or Testimony
Regarding Joseph St. Romain Jr.'s Lost Wages54
Defendants move to exclude evidence of the Plaintiff’s claim for lost wages.

Defendants argue that “plaintiff has never produced any evidence that would support a
claim for lost wages, nor has he properly disclosed what amount in damages he is seeking
in accordance with Fed. R. Civ. P. 26(a)(1)(A)(iii).”55 Plaintiff opposes the Motion arguing
that, in his Rule 26 disclosures, he stated that he “has not yet determined computation of
damages [and] specifically reserves the right to update, supplement and revise this
damage calculation prior to trial.”56 While he concedes that that he did not provide the
Defendants with a specific calculation of his lost wages, Plaintiff submits that, in response
to discovery, he identified his history of employment and wage history and he authorized
Defendants to obtain his income tax returns.
Plaintiff concedes that he did not provide a specific calculation of his lost wages
and earnings, despite discovery requests which called for the information. The relevant
written discovery was as follows:
INTERROGATORY NO. 16:
With regard to the damages you are socking as a result of the occurrence
made the basis of this lawsuit, please set forth the total amount of damages
sought, itemizing the amount for each individual element you are seeking
to recover, including, but not limited to, medical expenses (past and future),
lost wages (past and future), pain and suffering, mental anguish, loss of
earning capacity, loss of consortium, etc., and giving the basis therefor.
54

Rec. Doc. 64. Opposition at Rec. Doc. 71.
Rec. Doc. 64-1, p. 2.
56
Rec. Doc. 71, p. 2.
55

14

ANSWER TO INTERROGATORY NO. 16:
Plaintiff has not yet made that calculation.57
REQUEST FOR PRODUCTION NO. 14:
Please produce all documents which support your claim for actual damages
as alleged in your Petition (i.e. medical expenses, lost earnings, etc.).
ANSWER TO REQUEST FOR PRODUCTION NO. 14:
Objection, premature, overly broad and vague. Subject to the objection, all
documents produced herein support Plaintiff's claims.58
In his 2015 deposition, the Plaintiff testified that he had not come to a “final number”
for his wage loss claim but that he and his attorney planned on calculating that.59 Plaintiff
was obliged by Federal Rule of Civil Procedure 26 to provide “a computation of each
category of damages claimed”. Plaintiff admittedly did not. Furthermore, Defendants
specifically requested a calculation of all special damages, including lost wages, however,
no such information was provided. Seeking to be excused from his discovery failures,
Plaintiff argues that “[a] lthough Mr. St. Romain did not provide a specific calculation of
his lost wages and earnings in his answers to Defendants’ Interrogatories, he did provide
a listing of his employment, and his wages, for the ten (10) years preceding the date of
the incident made the basis of this suit.”60
Litigation is not a game of blind man’s bluff. Fed. R. Civ. Proc. 37(c)(1) states that,
“[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness to supply evidence on a

57

Rec. Doc. 64-4, p. 9.
Id. at p. 13.
59
Rec. Doc. 64-5.
60
Rec. Doc. 71, p. 3.
58

15

motion, at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.”
“Considering the purpose of Rule 26(a)(1)(A) and its direct link to exclusionary
sanctions in Rule 37(c),”61 Plaintiff lacks substantial justification for failing to produce a
computation of the wage loss he claims. Given that wage loss is a significant component,
if not the most significant component, of the Plaintiff’s damage claim, the Court finds the
evidence important. Plaintiff did not offer any justification for his failure to provide a
computation. Finally, this litigation is at an advanced stage, all deadlines have passed,
the Parties have submitted proposed voir dire, jury instructions and lodged evidentiary
motions, therefore the omission by Plaintiff is not harmless.62 For these reasons the
Defendants’ Motion in Limine to Exclude Any Evidence or Testimony Regarding Joseph
St. Romain Jr.'s Lost Wages (Rec. Doc. 64) is GRANTED.
V.

Defendants’ Motion in Limine to Exclude Any Evidence or Testimony
Regarding Joseph St. Romain Jr.'s Medical Expenses63
Defendants move for exclusion of evidence of Plaintiff’s medical expenses under

Fed. Civ. Proc. 37(c)(1), asserting that Plaintiff failed to make initial disclosures64 of
medical expenses and failed to produce evidence of medical expenses despite specific
discovery requests calling for same65.
Plaintiff does not dispute that he did not disclose or make any computation of his
medical expense as required by FRCP Rule 26(a), nor does Plaintiff dispute that he did

61

Martino v. Kiewit New Mexico Corp., 600 Fed. Appx. 908, 911 (5th Cir. 2015).
See, CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268, 277 (5th Cir.2009) and Patterson v. Houston
Independent School Dist., 570 Fed. Appx. 367, 370 (5th Cir. 2014).
63
Rec. Doc. 65.
64
Rec. Doc. 65-3.
65
Rec. Doc. 65-4.
62

16

not produce medical expense evidence in response to written discovery. In what the Court
construes as an argument that the undisputed discovery failures were harmless, Plaintiff
argues that he “identified his treating health care providers early in this litigation, and
Defendant subpoenaed his medical records”.66 Plaintiff argues that, in his deposition, he
testified about his alleged injuries and the medical treatment he sought and that the
Defendants obtained the evidence via subpoena to Plaintiff’s medical providers.67
Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that “[i]f a party fails
to provide information or identify a witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.” Plaintiff
offers no justification for his failure to comply with Rule 26 or his failure to respond to
specific discovery requests for the subject medical evidence. In evaluating whether the
failure to disclose is harmless, a court looks to four factors: (1) the explanation for the
party's failure to disclose; (2) the importance of the evidence; (3) the potential prejudice
to the opposing party from including the evidence; and (4) the availability of a
continuance.68 In this Court’s view, the diligence of the opposing party in obtaining
evidence by independent means, in this case subpoena, should not provide the basis for
defeating the sanction of exclusion on the grounds of harmlessness. “Written in
mandatory terms, Rule 37(c)(1) was adopted in 1993 to give ‘teeth to a significantly

66

Rec. Doc. 75, p. 2.
Id.
68
CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268, 280 (5th Cir.2009); Terrance v. Pointe Coupee Parish
Policy Jury, 2006 WL 1153732, *1 (5th Cir.2006).
67

17

broadened duty’ to comply with case management orders’ and Rule 26's disclosure
requirements.”69
While this Court is chagrin to reward the Plaintiff by finding the disclosure and
discovery failure harmless because the Defendants exercised other means to obtain the
subject medical expense evidence, the Court is also mindful that exclusionary sanctions
are harsh and, thus, should be used sparingly, especially when the exclusion would be
outcome determinative.70 Here, the exclusion of medical expense evidence would not be
outcome determinative.
In determining harmlessness of the disclosure failure, the Court evaluates whether
Defendants were prejudiced by Plaintiffs' failure to comply with discovery rules.
Defendants were on notice of the injuries claimed and the treatment received for the
claimed injuries.71 Plaintiff’s Petition for Damages makes a specific claim for medical
expenses.72 Defendants subpoenaed the subject information directly from the providers
and Defendants did not file any discovery motions to compel disclosure. The Court finds
that the Defendants were not prejudiced by Plaintiff’s failure to disclose “a computation of
[the medical expense] category of damages claimed.”73
The Defendants’ Motion in Limine to Exclude Any Evidence or Testimony
Regarding Joseph St. Romain Jr.'s Medical Expenses (Rec. Doc. 65) is DENIED without

69

In re Enron Corporation Securities, Derivative & "Erisa'' Litigation, 2007 WL 5023541 (S.D.Tex. 2007),
citing, Gagnon v. Teledyne Princeton, Inc., 437 F.3d 188, 191 (1st Cir.2006) and Newman v. GHS
Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir.1995).
70
Martin v. Winn-Dixie Louisiana, Inc., 132 F.Supp.3d 794, 808 (M.D.La. 2015), internal quotes and
citations omitted.
71
See discussion at Notes 64 and 65, supra.
72
Rec. Doc. 1-2 ¶ 19, p. 13..
73
Fed. R. Civ. P. 26(a)(1)(A)(iii). See also, Primrose Operating Co. v. National American Ins. Co., 382 F.3d
546, 564 (5th Cir. 2004).

18

prejudice to the right of the Defendants to object to medical expense evidence not
previously received by subpoena and not produced by Plaintiff.
VI.

CONCLUSION
For the foregoing reasons, the Court rules as follows:
Plaintiff’s Motion in Limine74 is DENIED in part and GRANTED in part. Specifically,

Plaintiff’s request to exclude arrests and incident reports by law enforcement prior to the
October 3, 2013 arrest which is the subject matter of this litigation is DENIED without
prejudice to re-urging objections at trial. Plaintiff’s request to exclude arrests and incident
reports by law enforcement after the October 3, 2013 arrest is GRANTED. Plaintiff’s
request to exclude Plaintiff’s Nolo Contendere plea regarding the October 3, 2013 arrest
which is the subject matter of this litigation is GRANTED. Plaintiff’s request to exclude
evidence and testimony not disclosed or produced by Sheriff Ard is DENIED. Plaintiff’s
request to exclude Defendant’s Exhibit JJ which was not disclosed or produced by Major
Jim Brown is GRANTED.
Defendants Sherriff Jason Ard and Major Jim Brown’s Motion in Limine to Exclude
Evidence or Testimony of Claims That Have Been Dismissed75 is DENIED without
prejudice to urging objections at trial.
Defendants Sherriff Jason Ard and Major Jim Brown’s Motion in Limine to Exclude
Any Evidence of Disciplinary Action Taken Against Major Jim Brown76 is DENIED without
prejudice to urging objections at trial.

74

Rec. Doc. 58.
Rec. Doc. 62.
76
Rec. Doc. 63.
75

19

Defendants Sherriff Jason Ard and Major Jim Brown’s Motion in Limine to Exclude
Any Evidence or Testimony Regarding Joseph St. Romain Jr.'s Lost Wages77 is
GRANTED.
Defendants Sherriff Jason Ard and Major Jim Brown’s Motion in Limine to Exclude
Any Evidence or Testimony Regarding Joseph St. Romain Jr.'s Medical Expenses78 is
DENIED without prejudice to urging objections at trial.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on June 6, 2017.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

77
78

Rec. Doc. 64.
Rec. Doc. 65.

20