Dent v. Montgomery County Police Department et al
Filing
148
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 3/5/12. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MELISSA DENT
:
v.
:
Civil Action No. DKC 08-0886
:
:
ADAM SIEGELBAUM, et al.
MEMORANDUM OPINION
Presently pending and ready for review in this civil rights
case is the motion for a new trial filed by Plaintiff Melissa
Dent (ECF No. 137).
The issues have been fully briefed and the
court now rules, no hearing deemed necessary.
Local Rule 105.6.
For the following reasons, the motion will be denied.
I.
Background
The present case stems from an incident that occurred at
the residence of Plaintiff Melissa Dent in Montgomery County,
Maryland, on October 7, 2007.
Mullaney,
Kimberly
Wilson,
Defendants Adam Siegelbaum, John
and
Jennifer
Phoenix
were
the
Montgomery County police officers dispatched to Plaintiff’s home
to
respond
Gorham.
to
a
911
call
from
Plaintiff’s
friend,
Sabrina
Ms. Gorham indicated that Plaintiff had taken some
pills and requested emergency assistance and an ambulance.
Upon
arrival, Defendants concluded that Plaintiff should be taken to
the
hospital
for
an
emergency
mental
evaluation.
Plaintiff
resisted
and
Defendants
ultimately
deployed
a
taser
multiple
times to restrain her.
After the court resolved motions to dismiss and for summary
judgment, two claims remained:
(1) a claim against all four
police officers for an unconstitutional seizure of Plaintiff in
violation
of
Constitution
the
and
Fourth
Article
Amendment
26
of
the
to
the
Maryland
United
States
Declaration
of
Rights, and (2) a claim that Defendants Siegelbaum, Mullaney,
and
Wilson
used
excessive
Amendment and Article 26.
March 2011.
in
violation
of
the
Fourth
A seven-day jury trial took place in
On March 28, 2011, the jury reached a unanimous
verdict
finding
count.
(ECF No. 131).
that
the
Defendants
were
not
liable
on
any
On April 25, 2011, Plaintiff filed a
motion for a new trial.
opposition.
force
(ECF No. 140).
(ECF No. 137).
Defendants filed an
Plaintiff filed a reply.
(ECF No.
141).
II.
Standard of Review
Motions for a new trial are governed by Fed.R.Civ.P. 59.
This rule provides that after a jury trial “[t]he court may, on
motion, grant a new trial on all or some of the issues-and to
any
party-.
.
.
for
any
reason
for
which
a
new
trial
has
heretofore been granted in an action at law in federal court.”
Fed.R.Civ.P. 59(a)(1)(A).
Whether to grant a new trial “rests
2
within
the
sound
discretion
of
the
trial
discretion must not be arbitrarily exercised.”
court
but
such
Richmond v. Atl.
Co., 273 F.2d 902, 916 (4th Cir. 1960); see Atkinson Warehousing
& Distrib., Inc. v. Ecolab, Inc., 115 F.Supp.2d 544, 546 (D.Md.
2000), aff'd, 15 F.App’x 160 (4th Cir. 2001).
A district court
“must set aside the verdict and grant a new trial if (1) the
verdict is against the clear weight of the evidence, or (2) is
based upon evidence which is false, or (3) will result in a
miscarriage of justice, even though there may be substantial
evidence
which
would
prevent
the
direction
of
a
verdict.”
Knussman v. Maryland, 272 F.3d 625, 639 (4th Cir. 2001) (quoting
Atlas Food Sys. & Serv., Inc. v. Crane Nat'l Vendors, Inc., 99
F.3d 587, 594 (4th Cir. 1996)).
An error is insufficient cause for a new trial, unless the
error caused prejudice.
See Fed.R.Civ.P. 61 (“Unless justice
requires otherwise, no error in admitting or excluding evidenceor
any
other
error
by
granting a new trial[.]
the
court
or
a
party-is
ground
for
At every stage of the proceeding, the
court must disregard all errors and defects that do not affect
any party’s substantial rights.”); Charles Alan Wright, Arthur
R. Miller, & Mary Kay Kane, 11 Fed. Prac. & Proc. Civ. § 2805 (2d
ed.) (“[I]t is only those errors that have caused substantial
harm to the losing party that justify a new trial.
3
Those errors
that
are
59.”).
not
prejudicial
do
not
call
for
relief
under
Rule
Evidentiary errors are harmless if the court can “say
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error[s].”
Taylor v. Va.
Union Univ., 193 F.3d 219, 235 (4th Cir. 1999) (citations and
quotation
marks
omitted),
abrogated
on
other
grounds
as
recognized in Hill v. Lockheed Martin Logistics Mgmt., Inc., 354
F.3d 277, 284-85 (4th Cir. 2004); see also Kotteakos v. United
States,
328
U.S.
750,
765
(1946)
(same);
United
States
v.
Heater, 63 F.3d 311, 325 (4th Cir. 1995) (same), cert. denied,
516 U.S. 1083 (1996).
Plaintiff also moves for relief from final judgment on the
grounds of fraud, misrepresentation, or other misconduct of an
opposing party pursuant to Fed.R.Civ.P. 60(b)(3).
on a Rule 60(b)(3) motion:
“[T]o prevail
(1) the moving party must have a
meritorious [claim or] defense; (2) the moving party must prove
misconduct
by
clear
and
convincing
evidence;
and
(3)
the
misconduct prevented the moving party from fully presenting its
case.”
Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir. 1994)
(citing Spare Const. Co. v. WMATA, 657 F.2d 68, 71 (4th Cir.
1981).
4
III.
Analysis
Plaintiff argues that a new trial and/or relief from final
judgment is warranted because the court erred in (1) providing
the jury instructions; (2) admitting the 911 tape into evidence;
(3) admitting testimony from Dr. Emily Gordon; (4) admitting
expert
testimony
request
to
County’s
from
enforce
Internal
Dr.
a
Blumberg;
trial
Affairs
(5)
subpoena
File;
(6)
denying
to
Plaintiff’s
obtain
denying
Montgomery
admission
of
postings from a web forum discussing the incident; (7) denying
Plaintiff’s
request
to
allow
counsel
to
demonstrate
using
a
taser before the jury and to play videos of the taser in action;
and (8) failing to grant Plaintiff’s motion for a continuance of
the trial or to reopen discovery.
Each basis will be discussed
in turn.
A.
Jury Instructions
Plaintiff
number
of
argues
errors
that
that
the
warrant
jury
a
instructions
new
trial.
contained
In
a
reviewing
Plaintiff’s arguments, it is important to keep in mind that jury
instructions must be viewed holistically.
recently
reiterated
guidance
from
the
The Fourth Circuit
Supreme
Court
that
“a
single instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the overall
charge.”
Noel v. Artson, 641 F.3d 580, 586 (4th Cir. 2011)
5
(quoting Henderson v. Kibbe, 431 U.S. 145, 153 n.10 (1977)),
cert. denied, 132 S.Ct. 516 (2011) (No. 11-285).
The Fourth
Circuit further instructed:
It is easy enough to pick at words, phrases,
and
sentences
in
a
charge,
but
that
overlooks the fact that the charge in its
totality was what the jury heard.
A jury
verdict, moreover, represents a good deal of
work on the part of a good many people, and
the
instructions
undergirding
that
collective effort should not succumb lightly
to semantic fencing. Accordingly, we simply
determine
“whether
the
instructions
construed as a whole, and in light of the
whole record, adequately informed the jury
of the controlling legal principles without
misleading or confusing the jury to the
prejudice of the objecting party.”
Id. (quoting Bailey v. Cnty. of Georgetown, 94 F.3d 152, 156 (4th
Cir. 1996)). These principles guide the analysis of Plaintiff’s
arguments.
1.
Missing Witness Instruction
Plaintiff first argues that the court’s failure to give a
missing witness instruction or to permit Plaintiff’s counsel to
argue the issue to the jury was in error.
7).
(ECF No. 137, at 3-
Plaintiff contends that this instruction was appropriate as
to Young Sun Kim, a Montgomery County fire and rescue worker
(“EMT”) present at the scene of the incident on October 7, 2007,
and currently a police officer for Montgomery County.
Plaintiff
also contends that the instruction may have been appropriate for
6
the three to four other EMTs present at Plaintiff’s home that
night.
Id.
A missing witness instruction may be given if the failure
of a party to call a witness permits an inference that the
witness’ testimony would be unfavorable to that party’s case.
United
States
v.
King,
155
F.3d
562
(4th
opinion), cert. denied, 525 U.S. 973 (1998).
Cir.
1998)
(table
The instruction is
appropriate if two requirements are met:
First, it must be shown that the party
failing
to
call
the
witness
has
it
peculiarly within its power to produce the
witness by showing either:
a) that the
witness is physically available only to the
other party, or b) that, because of the
witness’s relationship with the other party,
the witness pragmatically is only available
to that party.
Second, the witness’s
testimony must elucidate issues important to
the trial, as opposed to being irrelevant or
cumulative.
Id.
(internal
citations
omitted);
see
also
United
States
v.
Brooks, 928 F.2d 1403, 1412 (4th Cir. 1991), cert. denied, 502
U.S. 845.
Circuit
As the United States Court of Appeals for the Second
has
recognized,
an
“aura
of
gamesmanship”
frequently
accompanies requests for missing witness instructions and as a
result
district
court
judges
are
afforded
discretion in deciding when to give the instruction.
considerable
See United
States v. Mittelstaedt, 31 F.3d 1208, 1215 (2d Cir. 1994), cert.
denied, 513 U.S. 1084 (1995); United States v. Torres, 845 F.2d
7
1165, 1170-71 (2d Cir. 1988).
The instruction is not appropriate
where the witness is available to both parties.
Jones v. Meat
Packers Equip. Co., 723 F.2d 370, 373 (4th Cir. 1983).
Fourth
Circuit
has
determined
that
the
supposed
The
“missing
witness” was equally available to both parties where the witness
was present in court during the trial and the attorney seeking
the
instruction
had
declined
the
court’s
offer
to
call
the
witness, Jones, 723 F.2d at 373, and where the party requesting
the instruction had not sought to call the witness and did not
make any effort to require the government to call the witness.
United States v. Chase, 372 F.2d 453, 467 (4th Cir. 1967), cert.
denied, 387 U.S. 907 (1967).
the
Fifth
and
Sixth,
have
Moreover, at least two circuits,
expressed
the
view
that
the
instruction is anachronistic and no longer appropriate in cases
subject to the Federal Rules of Evidence and Federal Rules of
Civil Procedure.
See Herbert v. Wal-Mart Stores, Inc., 911 F.2d
1044, 1048 (5th Cir. 1990); Allstate Ins. Co. v. Shuler, 53 F.3d
331 (6th Cir. 1995) (table opinion).
The Fifth Circuit explained
in Herbert:
A
litigant
may
use
modern
discovery
procedures to ascertain the identity and
proposed testimony of witnesses identified
with her opponent. If the district court
finds that a party is concealing the
identity
and
location
of
persons
with
knowledge of discoverable matter, the court
may impose an appropriate penalty.
If a
8
litigant wishes to call a hostile witness
but the witness is unwilling to testify, the
litigant may resort to compulsory process.
When the litigant has the hostile witness on
the stand, she may use leading questions to
interrogate the witness, and if necessary
impeach the witness under Rule 607 by any of
the standard means, including use of the
witness's prior inconsistent statements.
911 F.2d at 1048.
Here,
Ms.
Kim’s
identity
counsel during discovery.
was
provided
by
Defendants’
There is no evidence that Plaintiff
attempted to depose Ms. Kim or to subpoena Ms. Kim to testify at
trial.
Even at trial, when asked if he wished to call Ms. Kim
as a witness, Plaintiff’s counsel indicated that he did not.
Plaintiff cannot make deliberate choices not to obtain discovery
from an individual, express no desire to call her as a witness,
offer no evidence that the witness refused to testify, and then
contend she is unavailable.1
Similarly, Defendants have produced
affidavits from two of the other EMTs indicating that they were
subpoenaed by Plaintiff to testify at trial and were expecting
to do so, but that Plaintiff’s counsel ultimately elected not to
call them.
(ECF No. 140-2, Wister Bryant Aff.; ECF No. 140-3,
1
Plaintiff argues in her reply that Ms. Kim would not agree
to speak with Plaintiff’s counsel about the case without an
attorney present.
Plaintiff’s argument does not indicate that
her counsel employed any of the array of available discovery
tools to ascertain Ms. Kim’s testimony.
9
Carl Ritter Aff.).
Witnesses are not missing or unavailable
simply because a party chooses not to call them.
Cf. Jones, 723
at 373; Chase, 372 F.2d at 467.
In support of her broad interpretation of the instruction’s
applicability, Plaintiff relies heavily on the Seventh Circuit’s
opinion in Yumich v. Cotter, 452 F.2d 59 (7th Cir. 1971), cert.
denied, 410 U.S. 908 (1973).
In Yumich, the Seventh Circuit
held that ten to fifteen police officers who may have witnessed
or even been involved in an incident that was the subject of a
civil rights lawsuit and were present in the courthouse during
the
trial
because
were
they
pragmatically
were
employees
unavailable
of
the
to
the
defendant
plaintiffs
and
there
was
strong likelihood of bias toward the defendant if they were
called to testify.
Id. at 64.
Although the City of Chicago was
the only defendant at the time of the appeal, the conduct of the
non-testifying
police
officers
was
the
focus
of
the
suit.
Yumich’s understanding of pragmatic unavailability was extremely
broad and, in the nearly forty years since that decision, courts
have
found
the
circumstances
than
Additionally,
Yumich
instruction
appropriate
in
holding
might
Yumich’s
was
decided
before
Fed.R.Evid.
enacted and did away with the voucher rule.
does not dictate the result Plaintiff desires.
10
far
fewer
suggest.
607
was
Yumich, therefore,
In
sum,
Plaintiff
has
not
established
that
the
missing
witness instruction was appropriate under the circumstances.
2.
Spoliation
Plaintiff next argues that the court erred in denying her
request for a spoliation instruction with respect to the digital
pictures taken of Plaintiff after the tasing. These pictures
were
deleted
when
Defendant
Siegelbaum
connected
the
digital
an
adverse
camera to his computer for uploading.
“Under
the
spoliation
of
evidence
rule,
inference may be drawn against a party who destroys relevant
evidence.”
Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155
(4th Cir. 1995).
Spoliation is “the destruction or material
alteration of evidence or the failure to preserve property for
another’s use as evidence in pending or reasonably foreseeable
litigation.”
494,
505
Goodman v. Praxair Servs., Inc., 632 F.Supp.2d
(D.Md.
2009).
A
party
seeking
sanctions
for
spoliation, such as an adverse inference instruction, must prove
the following elements:
(1) [T]he party having control over the
evidence had an obligation to preserve it
when it was destroyed or altered; (2) the
destruction or loss was accompanied by a
“culpable state of mind;” and (3) the
evidence that was destroyed or altered was
‘relevant’ to the claims or defenses of the
party that sought the discovery of the
spoliated evidence, to the extent that a
reasonable factfinder could conclude that
11
the lost evidence would have supported the
claims or defenses of the party that sought
it.
Id. at 509 (citing Thompson v. United States Dep’t of Hous. &
Urban
Dev.,
219
F.R.D.
93,
101
(D.Md.
2003)).
“An
adverse
inference about a party’s consciousness of the weakness of his
case, however, cannot be drawn merely from his negligent loss or
destruction of evidence; the inference requires a showing that
the party knew the evidence was relevant to some issue at trial
and
that
his
destruction.”
willful
conduct
resulted
Vodusek, 71 F.3d at 156.
in
its
loss
or
The test is not whether
the individual intended to engage in the action that led to the
destruction
of
the
evidence,
but
whether
they
intended
to
destroy the evidence.
See, e.g., Meyer v. Boddie-Noell Enters.,
Inc.,
2011
No.
3:10cv386,
WL
201524
(E.D.Va.
Jan.
5,
2011)
(finding spoliation inference inappropriate where a lost camera
was mailed by defendant to his home office and defendant did not
save the empty envelope that was delivered without the camera),
judgment adopted by No. 3:10cv386, 2011 WL 221298 (E.D.Va. Jan.
21, 2011).
Here the spoliation instruction was not appropriate because
there
was
no
evidence
to
prove,
or
even
to
suggest,
Defendant Siegelbaum intended to destroy the pictures.
12
that
3.
Negligence
Plaintiff next argues that the court’s instruction as to
the
standard
for
negligence
was
in
error.
The
negligence
instruction given to the jury was:
An act is negligent if a defendant was under
a duty or obligation, recognized by law,
that required him or her to adhere to a
certain standard of conduct to protect
others against unreasonable risks, and he or
she
breached
that
duty
or
obligation.
Remember that someone’s mere negligence is
an insufficient basis on which to find that
such
person
violated
another
person's
constitutional rights.
(ECF No. 127, at 12).
Plaintiff argues that this instruction
was flawed because it permitted the jury to conclude that an
intentional breach of an obligation to act with reasonable care
would not give rise to liability.
(ECF No. 137, at 11).
Any lack of clarity as to whether intentional acts could
constitute negligence was remedied in a subsequent communication
with the jury.
asked
for
In the course of their deliberations the jury
clarification
of
the
difference
between
“an
intentional act, a reckless act, and a merely negligent act.”
(ECF No. 129, at 4).
The court provided a note stating:
In response to your question, I can offer
the following:
In order to prove her claim, Plaintiff must
show that the defendant acted with the
intent to deprive her of her rights or with
reckless indifference to those rights. An
act is intentional if it is done voluntarily
13
and deliberately and not because of mistake,
accident,
negligence
or
other
innocent
reason. An act is reckless if done in
conscious disregard of its known probable
consequences. In other words, even if a
defendant did not intentionally seek to
deprive
Plaintiff
of
her
rights,
if
nevertheless she or he purposely disregarded
the high probability that her or his actions
would deprive Plaintiff of her rights, then
this aspect of the claim would be satisfied.
On the other hand, negligence or lack of due
care
is
the
unintentional
failure
to
exercise ordinary, reasonable care and,
unless rising to the level of recklessness,
would not be enough for liability.
(Id. at 5).
This clarification made explicit that intentional
acts could not constitute negligence.
Plaintiff’s
attempt
to
argue
in
the
abstract
that
the
negligence instruction may have allowed the jury to conclude
that an intentional breach of a duty of care was negligent, and
therefore not actionable, falls short when the instruction is
considered in the appropriate context.
of
conduct
at
issue
were
those
The applicable standards
for
emergency
evaluation
petitions (“EEP”) and the use of force.
Specifically the jury
was
officer
instructed
individual
into
that
“before
custody
for
a
police
an
EEP,
the
may
officer
take
must
an
have
probable cause to believe that the person has a mental disorder
and presents a danger to the life or safety of the individual or
others.”
(ECF No. 127, at 12).
With respect to the use of
force the jury was instructed that the officers “may only employ
14
the amount of force necessary under the circumstances to detain
an individual.”
(Id. at 13).
An officer acting with the intent
to breach either of these standards of care would thus be acting
with
the
intent
to
take
an
individual
into
custody
without
probable cause or with the intent to use excessive force.
The
instructions left no question that if the jury reached such a
conclusion the intent requirement was established.
Because the
negligence instruction was not given in isolation, Plaintiff’s
concerns were and remain unfounded.
4.
Bailey v. Kennedy Instruction
Plaintiff next argues that the court’s refusal to give an
instruction in accordance with the Fourth Circuit’s decision in
Bailey v. Kennedy, 349 F.3d 731, 740-41 (4th Cir. 2003), was in
error.
officers
(ECF No. 137, at 12).
had
probable
cause
emergency mental evaluation.
decision
Bailey,
2
that
the
the
Fourth
police
Circuit
Bailey considered whether police
to
seize
an
Id. at 739.2
officers
lacked
emphasized
that
individual
for
an
In reaching its
probable
its
cause
analysis
in
was
In Bailey, police officers had arrived at the plaintiff’s
house in response to a neighbor’s report that the plaintiff was
at home alone, intoxicated, and suicidal. The first officer to
arrive entered the plaintiff’s home and confirmed through
conversation that the plaintiff was alone and intoxicated, but
the plaintiff reiterated that he was not suicidal. Nonetheless,
the officers determined that an emergency evaluation was needed
and proceeded to restrain plaintiff with force.
15
fact-specific
and
gave
examples
of
certain
factors
police
officers may consider relevant to the decision to conduct an
EEP.
Bailey
was
a
decision
reviewing
the
district
court’s
summary judgment ruling; no jury trial had taken place and the
Fourth Circuit made no holding as to the requirement for jury
instructions in emergency evaluation cases.
Nevertheless, Plaintiff argues that because this court did
not give the jury an instruction that specifically referenced
the types of evidence the jury should consider when assessing
probable cause the instructions were deficient.
Plaintiff
argues
that
it
was
not
clear
from
In particular
the
court’s
instruction that the jury should only consider the factors that
were known to the officers at the time they encountered the
Plaintiff in her home and not any after-acquired facts.3
3
The specific instruction requested by Plaintiff was:
“[T]he law in no way permits random or
baseless
detention
of
citizens
for
psychological evaluations,” and a 911 call
alone does not justify the detention of a
citizen for a psychological evaluation. The
officers
must
take
into
account
other
factors, such as whether the individual is
visibly distraught or crying, what he or she
was doing, whether there were weapons or
other suicide preparations evident, whether
the
individual
admitted
or
denied
any
suicide reports, and whether the individual
told the officers they needed to leave.
16
As an initial matter, Plaintiff’s argument fails because
the
instruction
proposed
after acquired facts.
by
Plaintiff
makes
no
reference
to
Thus, to the extent this is the defect
Plaintiff was seeking to cure, her proposal would not have done
so.
More importantly, however, the jury was instructed that
“the presence or absence of probable cause is to be judged under
the totality of circumstances and from an objective viewpoint,”
and that “[t]he standard of ‘reasonableness’ under the Fourth
Amendment
is
wholly
objective;
the
question
is
whether
an
officer’s actions were ‘objectively reasonable’ in light of the
facts
and
circumstances
confronting
him
or
her.”
These
instructions were adequate to inform the jury of its duty to
consider all the facts known to the officers, not solely the 911
call and not facts unknown to the officers at the relevant time.
The instructions were appropriate and did not conflict with the
Fourth Circuit’s holding in Bailey.
5.
Next,
Active v. Passive Resistance
Plaintiff
argues
that
it
was
an
error
not
specifically to instruct the jury to consider whether Plaintiff
was actively or passively resisting arrest and that an officer
(ECF No. 137, at 12).
17
who believes a subject is mentally disturbed must make a greater
effort to control the situation through less intrusive means.
Plaintiff contends that the court’s instructions did not permit
the jury to take into account Plaintiff’s resistance, or lack
thereof, when assessing the necessity for the use of the force
and whether the force used was reasonable.
Defendants argue
that the evidence showed Plaintiff was actively resisting arrest
and thus the court’s instruction adequately accounted for the
Supreme Court’s ruling in Graham v. Connor, 490 U.S. 386, 396
(1989), stating that whether one is actively resisting arrest is
a relevant factor for the use of force.
(ECF No. 140, at 8).
The jury was instructed that:
In determining what amount of force is
objectively
reasonable
under
the
circumstances, you should consider that
police officers are often forced to make
split
second
judgments,
under
tense,
dangerous, and rapidly moving circumstances,
about the amount of force necessary to
effect
a
particular
detention.
Careful
consideration of the exigencies of each
particular situation is the appropriate and
effective way to ensure that police officers
are not unduly inhibited in the performance
of their duties.
The Fourth Circuit recently confirmed that in an excessive force
case, instructions that provide the jury with a “general rubric
of reasonableness” are appropriate and leave counsel with “more
than enough room to argue the facts in light of that standard.”
18
Noel, 641 F.3d at 587.
specific
instruction
In Noel, the plaintiff had sought a
addressing
the
reasonableness
officers’ third gunshot in an arrest.
Id.
of
police
In upholding the
district court’s decision to reject this instruction, the Fourth
Circuit affirmed that good jury instructions state a general
standard and leave to counsel to argue the general statement’s
application to the specific facts of a case.
“[D]istrict judges
are not required to comment on the evidence, and their refusal
to
single
out
any
particular
item
of
evidence
is
often
a
sensible approach to evenhandedness in the presentation of the
law.”
Id. (quoting Duke v. Uniroyal, Inc., 928 F.2d 1413, 1421
(4th Cir. 1991)).
Here, the jury was properly instructed on the
relevant standard and Plaintiff’s counsel was free to argue in
his closing that Plaintiff did not actively resist.
No error
was made.
B.
Admission of 911 Tape
Plaintiff
contends
that
the
court
erred
in
allowing
Defendants to play a portion of the tape recording of the 911
telephone call from Ms. Gorham to an emergency dispatcher on
October 7, 2007.
(ECF No. 137, at 16).
Plaintiff objects to
the admission of this recording by arguing that it contains
hearsay, was irrelevant, and was cumulative.
19
Not all out of court statements or recordings thereof are
inadmissible.
The Federal Rules of Evidence define hearsay as
“a
other
statement,
than
one
made
by
the
declarant
while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.”
Fed.R.Evid. 801.
Thus, out-
of-court statements not offered for the truth of the matter
asserted are not hearsay and not inadmissible.4
As was explained when Plaintiff objected at trial, the 911
tape was not admitted to prove the truth of the statements made
by Ms. Gorham or the emergency dispatcher.
Instead, Defendants
were permitted to play a portion of the full recording for the
limited purpose of allowing the jury to hear the voices of Ms.
Gorham and Plaintiff, particularly their tone and their choice
of words.
This evidence was relevant and not cumulative because
it conveyed the sense of urgency and Plaintiff’s demeanor at the
time, in a manner not evident from the testimony of Ms. Gorham
and Plaintiff.
Gorham
had
There was no prejudice because Plaintiff and Ms.
already
testified
that
the
words
were
spoken.
Additionally, the jury was clearly instructed before the tape
4
Plaintiff does not argue that the recording itself was
inadmissible,
but
instead
focuses
her
arguments
on
the
statements recorded on the tape. The 911 recording itself, even
if considered hearsay, was admissible as a public record
pursuant to Fed.R.Evid. 803(8).
20
was
played
that
they
were
to
consider
the
recording
for
a
limited purpose and none of the statements were to be taken for
the truth of the matter asserted.
Instead, the jury was to use
the recording only to aid in its evaluation of the testimony of
Ms. Gorham and Plaintiff.
The jury was also reminded that the
Defendant officers never heard the tape or the conversation it
recorded.
For all these reasons, the recording was properly
admitted.
C.
Testimony of Dr. Emily Gordon
Plaintiff contends that the testimony of Dr. Emily Gordon
should
not
have
been
admitted
because
she
had
no
personal
knowledge of the facts of the case and the testimony she gave
regarding
the
irrelevant.
number
of
pills
ingested
(ECF No. 137, at 19).
by
Plaintiff
was
Plaintiff argues that the
court should have either stricken Dr. Gordon’s testimony from
the record or taken judicial notice of the proper dosage of
Amitriptyline
per
the
Physician’s
instructed the jury accordingly.
Plaintiff’s
argument
knowledge is misplaced.
Desk
Reference
(“PDR”)
and
(Id.).
regarding
Dr.
Gordon’s
lack
of
Dr. Gordon was Plaintiff’s treating
physician at Shady Grove Hospital the night of October 7, 2007.
Dr. Gordon did not lack personal knowledge; she simply no longer
recalled the details of her encounter with Plaintiff in 2007.
21
Because Dr. Gordon had taken notes to document her conversation
with Plaintiff at the hospital, it was appropriate for her use
those
notes
to
aid
in
her
testimony.
Fed.R.Evid.
803(5)
specifically provides for this practice, stating:
(5) Recorded recollection. A memorandum or
record concerning a matter about which a
witness once had knowledge but now has
insufficient recollection to enable the
witness to testify fully and accurately,
shown to have been made or adopted by the
witness when the matter was fresh in the
witness’
memory
and
to
reflect
that
knowledge
correctly.
If
admitted,
the
memorandum or record may be read into
evidence but may not itself be received as
an exhibit unless offered by an adverse
party.
In
this
Defendant’s
instance,
Exhibit
requirements
for
8
Rule
the
and
hospital
shown
803(5).
to
Dr.
records
Dr.
identified
Gordon
Gordon’s
meet
records
as
the
were
prepared contemporaneously with her treatment of Plaintiff and
reflect Dr. Gordon’s knowledge at that time.
Rule
803(5)’s
admitted,
but
dictates,
Dr.
Gordon
In accordance with
the
records
themselves
was
properly
permitted
were
to
not
testify
regarding the statements she had recorded in the past as they
accurately reflected Dr. Gordon’s impressions of the Plaintiff
at the hospital on the night in question.
Plaintiff’s argument with respect to the PDR is irrelevant.
The reason the request to take judicial notice of the PDR was
22
denied was not that the PDR cannot be the subject of judicial
notice.
The request was denied because information regarding
the proper dosage of Amitriptyline was deemed irrelevant to the
questions before the jury.
This determination is not altered by
the fact that Dr. Gordon testified as to the number of pills
Plaintiff reported taking.
D.
Testimony of Dr. Blumberg
Plaintiff argues that several aspects of the testimony of
Dr. Blumberg were improperly admitted.
First, Plaintiff argues that the jury should not have heard
testimony from Dr. Blumberg regarding Plaintiff’s blood alcohol
concentration (“BAC”) test results.
Plaintiff challenges the
accuracy of the blood alcohol testing on four grounds:
(1) the
test did not account for the possibility of a false positive
because an alcohol swab was used to clean Plaintiff’s skin prior
to drawing a blood sample; (2) the test was conducted on a serum
blood sample rather than a whole blood sample; (3) the hospital
did
not
account
for
a
potential
false
positive
or
inflated
results due to other drugs consumed by Plaintiff; and (4) the
hospital did not account for a potential false positive due to
Plaintiff’s simultaneous IV fluid intake.
23).
23
(ECF No. 137, at 21-
As an initial matter, Plaintiff’s arguments misconstrue the
nature
of
Dr.
Blumberg’s
testimony.
Dr.
Blumberg
did
not
personally conduct the BAC test, and he was not proffered to
opine on its reliability.
Instead, he was called to explain how
Plaintiff’s alcohol and drug consumption may have affected her
demeanor,
appearance,
characteristics.
He
memory,
relied
and
on
other
the
BAC
physical
test
in
or
mental
forming
his
conclusions, but his analysis was not dependent solely on the
accuracy of the BAC test.
Additionally, Plaintiff’s counsel
questioned Dr. Blumberg about each alleged flaw with the BAC
test during his cross examination, and, thus, Plaintiff was able
to present the jury with her concerns about the test results.
Indeed,
the
potential
methodological
minor deviations from the correct result.
flaws
suggest
only
With respect to the
use of an alcohol swab, Dr. Blumberg agreed that its use could
cause a slight increase in the BAC.
This testimony is not
inconsistent
in
with
the
literature
cited
Plaintiff’s
brief.
The quoted excerpt indicates that use of an alcohol swab may
lead to a false positive test result.
(ECF No. 137, at 21).
This concern is entirely inapplicable to the situation at hand.
There
is
no
dispute
that
Plaintiff
had
consumed
multiple
alcoholic beverages on the night in question, and it was not a
situation where anyone could expect a BAC test to show no trace
24
of alcohol in the blood.
With respect to the use of serum
rather than whole blood, Dr. Blumberg testified that this was
standard hospital practice and disputed Plaintiff’s counsel’s
proffer that using serum could overstate the amount of alcohol
by 20% or more.
a
different
Plaintiff’s citation to one periodical reaching
conclusion
Blumberg’s testimony.
is
not
justification
to
strike
Dr.
With respect to the Plaintiff’s two final
points — that other medicines and IV fluid administration might
have affected the results — Dr. Blumberg conceded these points,
but stated that he thought the effect would be minimal.
Minor
discrepancies in the BAC test result would not significantly
affect Dr. Blumberg’s analysis.
Plaintiff next argues that it was improper to permit Dr.
Blumberg to testify about Plaintiff’s behavior the night of the
incident because he had no foundation or scientific basis for
his
testimony.
misrepresents
(ECF
the
No.
content
24).
of
Plaintiff’s
Dr.
Blumberg’s
argument
here
testimony.
Dr.
Blumberg testified about how an average person with a blood
alcohol level of .284 and who had taken two to four pills of
Amitriptyline might act.
Based on his prior experience, Dr.
Blumberg was qualified to offer this testimony.
questioned
individuals
by
Plaintiff’s
have
unique
counsel,
responses
25
Dr.
to
And again, when
Blumberg
alcohol
agreed
consumption
that
and
that factors such as food consumption can impact the body’s
tolerance.
Finally, Plaintiff argues that the court erred in denying
her request for a Daubert hearing on the admissibility of Dr.
Blumberg’s
opinions.
This
argument
is
also
without
merit.
Notably, when Plaintiff’s counsel requested a Daubert hearing at
a pre-trial motions hearing, counsel admitted that he had no
witnesses that he intended to call at such a hearing.
Daubert
hearings are not mandated in all cases and, as a general matter,
trial
judges
have
significant
discretion
admissibility of expert opinion.
in
determining
the
See Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152 (1999) (“The trial court must have
[discretionary] latitude in deciding how to test an expert’s
reliability, and to decide whether or when special briefing or
other proceedings are needed to investigate reliability[.]”).
Where Plaintiff still cannot identify any substantial flaw in
Dr. Blumberg’s testimony, there is no reason to conclude that a
Daubert hearing was necessary.
To the contrary, such a hearing
would have imposed just the sort of “unjustifiable expense and
delay” the Federal Rules of Evidence aim to avoid.
Id. (citing
Fed.R.Evid. 102).
In all, none of the alleged flaws rendered Dr. Blumberg’s
testimony inadmissible.
26
E.
Internal Affairs File
Next, Plaintiff argues the court’s refusal to enforce the
trial subpoena she served on Montgomery County was an error.
Plaintiff’s use of a trial subpoena duces tecum to attempt to
gain
access
to
the
internal
affairs
file
was
used
not
to
proper,
however, so there was no error.
Trial
subpoenas
are
typically
ensure
the
availability at trial of original documents previously disclosed
by discovery.
See, e.g., Rice v. United States, 164 F.R.D. 556
(N.D.Okla. 1995); Mortg. Info. Servs., Inc. v. Kitchens, 210
F.R.D. 562, 567 (W.D.N.C. 2002) (citing Rice).
some
courts
subpoenas
may
have
be
stated
used
as
a
refresh
general
a
In addition,
principle
witness’s
memory.
that
trial
See
id.
(citing Puritan Inv. Corp. v. ASLL Corp., No. Civ. A. 97-1580,
1997 WL 793569, at *1 (E.D.Pa. Dec. 9, 1997)).
are not substitutes for discovery.
Trial subpoenas
As stated in a case upon
which Plaintiff relies, a party cannot use a trial subpoena to
obtain documents that were requested - but not produced - during
the course of discovery if the party did not seek to compel
their
production
prior
to
discovery’s
close.
Kitchens,
210
F.R.D. at 567 (citing McNerney v. Archer Daniels Midland Co.,
164 F.R.D. 584, 588 (W.D.N.Y. 1995)).
Another case cited by
Plaintiff, Rice, likewise acknowledged that a situation might
27
arise where Rule 45 could be invoked to obtain materials outside
of discovery, but on the facts of the case quashed the subpoena
because it sought documents that could and should have been
pursued during the authorized discovery period.
559.
164 F.R.D. at
The subpoena at issue in Puritan Investment Corp. was
likewise quashed and the court there explained:
There is absolutely no indication that
plaintiff
knows
what
information
is
contained in the documents it seeks or that
they would support plaintiff’s theory of its
case. A trial subpoena is not an appropriate
means of ascertaining facts or uncovering
evidence.
This
should
be
done
through
discovery in the manner and time provided by
the Federal Rules and court order.
1997 WL 793569, at *2.
The Puritan court also emphasized that
the plaintiff did not and could not credibly aver that it was
unaware of the possible existence of the subpoenaed documents
before the discovery deadline.
Id. (“when a [party] . . . is
aware of the existence of documents before the discovery cutoff
date and issues discovery requests including subpoenas after the
discovery deadline has passed, then the subpoenas and discovery
requests
588)).
should
be
denied”
(quoting
McNerney,
164
F.R.D.
at
Plaintiff’s counsel was aware of the internal affairs
file long before trial.
At the pre-trial hearing, Plaintiff’s
counsel
identify
was
unable
to
any
specific
document
or
documents within the internal affairs file needed to refresh any
28
witness’s
recollection
or
for
any
other
specific
purpose.
Counsel’s responses confirmed that the subpoena was not a proper
trial
subpoena.
Instead,
it
was
an
improper
and
belated
discovery request.
Plaintiff
also
cites
two
cases
holding
that
Rule
45
subpoenas to third parties are not discovery and can be served
after discovery deadlines, (ECF No. 137, at 33 (citing O’Boyle
v. Jensen, 150 F.R.D. 519 (M.D.Pa. 1993); Multi-Tech Sys., Inc.
v. Hayes Microcomputer Prods., Inc., 800 F.Supp. 825 (D.Minn.
1992)), and argues that because Montgomery County is not a party
its subpoena should have been enforced.
Plaintiff fails to
mention that these two cases represent the minority view and
that most courts interpret Rule 45 subpoenas as discovery, see,
e.g., Kitchens, 210 F.R.D. at 567.
Plaintiff’s second argument
overlooks the fact that Montgomery County was originally a named
Defendant
in
this
discovery
period.
case
and
Indeed,
it
remained
Plaintiff
a
party
requested
during
the
the
internal
affairs file from Montgomery County through discovery, but she
never sought to compel its production.
F.
Internet Postings
Plaintiff argues that the four Defendants committed fraud
by refusing to admit to authorship of a series of internet posts
containing information about Plaintiff and this case.
29
Plaintiff
maintains that only the Defendants could have written the posts
and that they were relevant and admissible at trial because they
could have impeached Defendants’ recollection of the events on
the evening in question, they are prior bad acts evidence, and
they are evidence of bias.
Plaintiff’s
arguments
as
to
the
postings’
relevance
are
only valid if Plaintiff can establish authorship of the posts.
The
fact
that
anonymous
individuals
made
comments
about
Plaintiff’s case, often in offensive terms, on its own is not
relevant to any of the disputed issues of the cases.
Plaintiff
cannot rely on insinuation and argument to prove that any of the
Defendants authored the posts and Plaintiff offers nothing else.
Trial
was
far
too
late
for
Plaintiff
to
conduct
a
fishing
expedition to attempt to link the posts to any of the Defendants
and, as a result, those posts were properly excluded from trial.
Plaintiff’s
allegation
of
fraud
or
misconduct
from
Defendants or their counsel similarly suffers from a lack of
proof.
Fraud is a serious allegation and granting relief from
judgment on that basis requires substantial proof.
Plaintiff
has offered nothing more than suggestions of inconsistency and
her own hypothesis.
30
G.
Taser Gun and Videos
Plaintiff was not permitted to demonstrate the use of the
taser in court or to show videos of taser training.5
According
to Plaintiff, both rulings precluded the jury from understanding
the taser’s capabilities and effects, and, thus, the jury was in
no
position
to
assess
whether
using
a
reasonable force under the circumstances.
Courtroom
evidence.
demonstrations
Accordingly,
are
the
taser
constituted
(ECF No. 137, at 38).
subject
to
proponent
the
of
rules
a
of
proposed
demonstration must show that the demonstration is relevant and
not unduly prejudicial.
United States v. Williams, 461 F.3d
441, 446 (4th Cir. 2006), cert. denied, 549 U.S. 1047 (2006).
“A
courtroom
demonstration
that
issue
relevant
performed
is
if
purports
to
under
recreate
events
at
conditions
that
are
‘substantially similar to the actual events.’”
Id. (quoting
Hinkle v. City of Clarksburg, 81 F.3d 416, 425 (4th Cir. 1996)).
If
the
differences
between
the
demonstration
and
the
actual
occurrence are significant, “the trial judge is justified in
concluding
either
that
the
evidence
is
totally
lacking
in
probative value as to any material issue, or that the probative
value
of
5
the
evidence
is
overborne
by
the
danger
that
Plaintiff’s counsel requested permission to demonstrate
the taser himself during opening statements, closing arguments,
and in examining witnesses.
31
introduction of the evidence will tend to confuse the issues,
unnecessarily prolong the trial, or create a likelihood of undue
prejudice.”
Id. (quoting Renfro Hosiery v. Nat’l Cash Register
Co., 552 F.2d 1061, 1065 (4th Cir. 1997)).
In
this
case,
all
the
relevant
considerations
pointed
toward denying Plaintiff’s request to demonstrate the taser in
court.
All
the
testifying
witnesses
who
were
present
at
Plaintiff’s home the night of Oct 7, 2007, were able to speak
about the night’s events, including the use of the taser and its
effects on Plaintiff.
This testimony was adequate to explain
how a taser functioned.
It may also have been appropriate for
Plaintiff to call as a witness an individual with particular
knowledge as to the function and use of tasers.
former
counsel
proper
and
foreclosed.
failed
timely
to
designate
fashion,
such
however,
an
so
Plaintiff’s
individual
this
avenue
in
a
was
Even with an appropriately designated and admitted
expert witness, however, it is hard to imagine a scenario in
which it would be necessary for that expert to discharge the
taser in open court.
Plaintiff certainly did not provide such a
scenario either at trial or in her post-trial briefs.
The
fact
that
a
few
other
courts
have
permitted
taser
demonstrations in court does not, as Plaintiff intimates, mean
that taser demonstrations are always appropriate or that failure
32
to allow such a demonstration is adequate justification for a
new trial.
Additionally, the cases cited by Plaintiff are not
binding
this
on
court
and
largely
distinguishable.
In
the
unpublished Fourth Circuit case referenced by Plaintiff, Sumpter
v. Han, 208 F.2d 210 (4th Cir. 2000) (table opinion), it appears
that the officer was permitted to demonstrate how a stun gun was
used as a baton; he was not permitted to fire the stun gun in
In United States v. Myers, 972 F.2d 1566, 1580 (11th
open court.
Cir. 1992), while the Eleventh Circuit held that the trial judge
had
not
abused
demonstration
prosecution
numerous
his
in
and
discretion
court,
the
occasions,
prejudice argument.
it
recognized
defense
there
in
had
was
no
permitting
that
activated
merit
to
a
stun
gun
both
the
because
the
the
stun
gun
on
defendant’s
In this case, Defendants did not wish to
demonstrate the taser, so the prejudice argument remains viable.
In the few Texas and New York state court decisions cited by
Plaintiff, witnesses that were either experts or police officers
were permitted to demonstrate use of electronic control weapons.
See
People
v.
Brower,
728
N.Y.S.2d
182
(N.Y.App.Div.
2001)
(upholding trial judge’s decision to permit police detective to
demonstrate use of stun gun); Grunsfeld v. State, 813 S.W.2d
158, 164 (Tex.Ct.App. Dallas 1991) (permitting investigator to
testify about stun gun and demonstrate its use); Lyon v. State,
33
No. 04-94-00320-CR, 1996 WL 269478 (Tex.Ct.App. May 22, 1996)
(prosecutor demonstrated use of stun gun in closing after expert
witness introduced gun).6
With respect to the taser training video, Plaintiff failed
to establish that the video had been seen by the Defendants
prior to the incident at Plaintiff’s home.
Absent such a link,
the video was not relevant.
H.
Failure To Grant Continuance of Reopen Discovery
Finally Plaintiff argues that the court should have granted
its request for a continuance or to reopen discovery.
On
two
discovery
or
prior
amend
occasions,
the
ECF Nos. 48, 49, 57, 58).
Plaintiff’s
schedule
have
requests
been
to
reopen
denied.
(See
The decisions of Plaintiff’s former
counsel remain binding on Plaintiff.
See, e.g., Link v. Wabash
R. Co., 370 U.S. 626, 663 (1962); Robinson v. Wix Filtration
Corp., LLC, 599 F.3d 403, 409 (4th Cir. 2010).7
Plaintiff now
6
Plaintiff separately lists the decision of the Western
District of Texas denying the Lyon defendant’s habeas petition
from the defendant in this case as another example of a court
approving a stun gun demonstration.
(See ECF No. 137, at 43
(citing Lyon v. Cockrell, 2003 U.S.Dist. LEXIS 7951 [2003 WL
21077419], at *23-24 (W.D.Tex. May 8, 2003)).
7
Plaintiff references this court’s statement in a prior
opinion that courts have not held parties to the errors or
neglect of their attorneys “where the errors or neglect of an
attorney result, or would result, in a final, involuntary
34
tries to argue that a continuance and additional discovery would
have benefitted both parties because Defendants also failed to
serve
pertinent
depositions.
request
for
discovery
Defendants
a
requests
did
not,
continuance.
In
and
however,
take
relevant
join
Plaintiff’s
to
prejudicing
addition
Defendants, granting Plaintiff’s request on the literal eve of
trial
and
following
jury
selection
would
have
imposed
significant costs and hardships on the judicial system and the
citizenry at large.
IV.
A continuance was not appropriate.
Conclusion
For the foregoing reasons, the motion for a new trial or
relief from judgment filed by Plaintiff Melissa Dent will be
denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
termination of proceedings.” (ECF No. 57 n.2 (quoting Lolatchy
v. Arthur Murray, Inc., 816 F.2d 951, 953 (4th Cir. 1987))). To
imply, as Plaintiff does, that this failsafe requires the court
to overturn the jury verdict here turns causation on its head.
35
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