Merritt-Ruth et al v. Latta et al
ORDER denying 123 deft's Motion in Limine. Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 14-12858
Honorable Nancy G. Edmunds
OFFICER SUSAN FREY-LATTA AND
OFFICER THOMAS BLAIR,
ORDER DENYING DEFENDANTS' MOTION IN LIMINE TO EXCLUDE
IMPERMISSIBLE DAMAGE CLAIMS, TESTIMONY, AND ARGUMENT 
This case arises from the death of Sidney Gurley, who was incarcerated at the Gus
Harrison Correctional Facility in Adrian, Michigan when he passed away from acute
peritonitis caused by a ruptured appendix. The only remaining claims in this case rest on
allegations that Officers Susan Frey-Latta and Thomas Blair violated Gurley’s Eighth
Amendment protection against cruel and unusual punishment through their deliberate
indifference to Gurley’s serious medical needs. This matter is now before the Court on
Defendants' Motion in Limine to Exclude Impermissible Damage Claims, Testimony, and
Argument (Dkt. # 123). For the reasons stated below, this Court DENIES Defendants’
Defendants’ motion seeks to preclude Plaintiff from calling family members to testify
and from introducing evidence regarding emotional feelings or losses of family members
or others, including the following exhibits proposed by Plaintiff: photographs of Gurley with
his family, Gurley’s funeral program, and family memorabilia. Defendants argue that such
evidence would suggest to the jury that they should include damages which are
impermissible in an action brought under 42 U.S.C. § 1983. Citing Blair v. Harris, 993 F.
Supp. 2d 721 (E.D. Mich. 2014), Defendants argue that Plaintiff may only recover for
conscious pain and suffering by Gurley between the time of injury and death---not for loss
of enjoyment, post-death loss, loss of companionship, emotional distress, loss of financial
support, or loss of society.
Citing Robertson v. Wegmann, 436 U.S. 584 (1978), Plaintiff responds that the
Supreme Court has specifically allowed survivors to sue for injury to their own interest if
allowed by state law. Plaintiffs further argue that Sixth Circuit precedent requires
acceptance of Michigan’s wrongful death statute, which provides recovery for a victim as
well as for the victim’s estate and survivors as an appropriate damage remedy in section
1983 cases, citing Frontier Ins. Co. v. Blaty, 454 F.3d 590 (6th Cir. 2006).
Plaintiff brings this action under 42 U.S.C. § 1983 in her capacity as personal
representative of Gurley's estate. Section 1983 provides no guidance for how to evaluate
damages; however, if section 1983 is
deficient in the provisions necessary to furnish suitable remedies and punish
offenses against law, the common law, as modified and changed by the
constitution and statutes of the State wherein the court having jurisdiction of
such civil or criminal cause is held, so far as the same is not inconsistent with
the Constitution and laws of the United States, shall be extended to and govern
the said courts in the trial and disposition of the cause.
42 U.S.C. § 1988.
See Robertson, 436 U.S. at 588-89. The Supreme Court has
recognized that survivors suing under section 1983 "for injury to their own interests" may
recover damages when allowed by state law. Id. at 592, n.9.
In this case, the Court must apply Michigan's civil damages laws. Michigan's wrongful
death statute provides as follows.
[T]he court or jury may award damages as the court or jury shall consider fair
and equitable, under all the circumstances including  reasonable medical,
hospital, funeral, and burial expenses for which the estate is liable; 
reasonable compensation for the pain and suffering, while conscious,
undergone by the deceased during the period intervening between the time of
the injury and death; and  damages for the loss of financial support and the
loss of the society and companionship of the deceased.
Mich. Comp. Laws § 600.2922(6). "Michigan's wrongful death statute is a derivative one
whereby the personal representative of the deceased stands in the latter's shoes." Blaty,
454 F.3d at 600.
The Sixth Circuit has instructed that courts "should not disturb a state remedy unless
it is clear that such remedy is wholly inconsistent with the Constitution and the goals of
section 1983." Id. at 603. In Blaty, the court found that "Michigan's wrongful death act is
consistent with the compensatory purpose of section 1983 identified by the Supreme
Court." Id. at 601. The court further stated that Michigan's wrongful death statute
"authorizes an award of damages for survivors' losses of support, society, and
companionship," which is consistent with the deterrent purpose of section 1983. Id. The
Court therefore concludes that Gurley's estate may recover the full extent of damages
available under Michigan's wrongful death statute.
As did the district court in Warren v. Shilling, No. 2:12-CV-13, 2015 WL 1726787, at
*3 (W.D. Mich. Apr. 15, 2015), this Court declines to follow Defendants' citation to Blair v.
Harris, 993 F. Supp. 2d 721, 731 (E.D. Mich. 2014). The court in Blair relied primarily on
Jaco v. Bloechle, 739 F.2d 239 (6th Cir. 1984), and on Claybrook v. Birchwell, 199 F.3d
350, 355 (6th Cir. 2000). However, while both Jaco and Claybrook establish that a state
remedy for a section 1983 violation must provide recovery to the victim himself, neither
case limits a state remedy such that survivors are precluded from recovery. See Warren,
2015 WL 1726787, at *4. In Jaco, the Sixth Circuit analyzed Ohio's wrongful death statute,
which unlike Michigan's wrongful death statute, provided no remedy for the personal injury
suffered by the victim himself. 739 F.2d at 242-43. Accordingly, the court found that the
Ohio statute was irreconcilable with 42 U.S.C. § 1988. Id. at 244-45; Blaty, 454 F.3d at
603. In this case, Michigan's wrongful death statute provides recovery for the victim as well
as the victim's estate and survivors, and there is no reason to disturb the state remedy.
See Blaty, 454 F.3d at 603. In Claybrook, the court held that section 1983 did not create
an independent cause of action for survivors. 199 F.3d at 357. The court found that a
complaint survived dismissal where the plaintiffs had adequately requested compensation
for the victim's alleged constitutional injuries in their representative capacities as coadministrators of his estate. Id. Likewise, in this case, Plaintiff appropriately seeks
damages in her representative capacity. Claybrook does not bar a victim's survivors from
recovering damages allowed by state law.
Accordingly, the Court rejects Defendants' argument and DENIES Defendants’ Motion
in Limine to Exclude Impermissible Damage Claims, Testimony, and Argument (Dkt. #
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: November 7, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record
on November 7, 2017, by electronic and/or ordinary mail.
s/Carol J. Bethel
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