Jacobs v. Alam et al

Filing 296

ORDER Denying Plaintiff's Motion for a New Trial 277 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDUARDO JACOBS,
Plaintiff,

CASE NO. 15-10516
HON. DENISE PAGE HOOD

v.
RAYMON ALAM, et al.,
Defendants.
/

ORDER DENYING PLAINTIFF’S MOTION FOR A NEW TRIAL [#277]
I.

BACKGROUND
A jury trial in this matter commenced on November 12, 2019, and it

concluded on December 3, 2019. On December 3, 2019, the jury returned a verdict
in favor of Defendants Raymon Alam, Dave Weinman, and Damon Kimbrough
(collectively “Defendants”) and against Plaintiff Eduardo Jacobs (“Jacobs”) on all
counts. On December 31, 2019, Jacobs, through his attorneys, filed the instant
Motion for a New Trial. [ECF No. 277] On January 2, 2020, Jacobs filed a Motion
to Substitute Counsel, [ECF No. 278] which the Court granted on January 10,
2020. [ECF No. 284] Jacobs is now proceeding pro se. Jacobs also filed a writ
certiorari with the Court, [ECF No. 279] which the Court construes as some sort of

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notice of appeal to the Sixth Circuit, which he has already filed with the Sixth
Circuit.
II.

LEGAL ANALYSIS
A. Motion for a New Trial
Rule 59 provides that a new trial may be granted to all or any of the parties

and on all or part of the issues for any of the reasons for which new trials have
heretofore been granted in actions at law in the courts of the United States. Fed. R.
Civ. P. 59(a)(1). Specific grounds for new trial have included: the verdict is
against the weight of the evidence; the damages are excessive; for other reasons the
trial was not fair; there were substantial errors in the admission or rejection of
evidence; the giving or refusal of instructions were in error; and misconduct of
counsel. Clark v. Esser, 907 F.Supp. 1069, 1073 (E.D. Mich. 1995); City of
Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749 (6th Cir. 1980); Static Control
Components, Inc. v. Lexmark Int’l, Inc., 697 F.3d 387, 414 (6th Cir. 2012).
The grant or denial of a new trial is purely within the discretion of the trial
court and will not be reversed except upon a showing of abuse of discretion.
Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989). The trial court
has broad discretion in deciding a motion for a new trial to prevent a miscarriage of
justice. Clark, 907 F.Supp. at 1073; City of Cleveland, 624 F.2d at 756; Fryman v.
Federal Crop Ins. Corp., 936 F.2d 244, 248 (6th Cir. 1991).
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B. Testimony of Javier Vargas, Jr.
Jacobs argues that the Court abused its discretion by denying his request to
declare Javier Vargas, Jr. (“Vargas, Jr.”) unavailable and prohibiting Jacobs from
reading Vargas, Jr.’s prior testimony into the record. The Court determined that
Jacobs did not meet Rule 804(a)(5)’s standard of unavailability. [ECF No. 271,
Pg.ID 7781] The Court also found that Vargas, Jr. was not a proper rebuttal
witness. [Id.]
To support his argument that the Court improperly ruled on the admissibility
of Vargas, Jr.’s testimony, Jacobs cites Moritz v. Woods, 692 F. App’x 249, 251-52
(6th Cir. 2017). Moritz provides that:
The test for whether a witness is “unavailable” as envisioned by MRE
804(a)(5) is that the prosecution must have made a diligent good-faith
effort in its attempt to locate a witness for trial. The test is one of
reasonableness and depends on the facts and circumstances of each
case, i.e., whether diligent good-faith efforts were made to procure
the testimony, not whether more stringent efforts would have
produced it.
Id.
Jacobs then looks to Eastham v. Johnson to provide context for what
constitutes a reasonable effort. 338 F. Supp. 1278, 1280 (E.D. Mich. 1972). In
finding a detective’s efforts reasonable, Eastham provides:
He found her apartment vacant. He testified that he talked to people in
the downstairs apartment and they informed him that Miss Wilkins had
moved . . . Petitioner obtained an affidavit from Detective Martinez and
attached it to his petition . . . Under the circumstances, the prosecution
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did in fact make a “good faith effort” to locate [the witness]. All the
interviews conducted by Detective Martinez failed to disclose any solid
hint as to Miss Wilkins' whereabouts.
Id.
Jacobs then analogizes his efforts to those of the detective’s in Eastham.
Jacobs indicates that he submitted the declaration of his retained private
investigator, Mr. Paul Whiting. [ECF No. 277, Pg.ID 7814] Mr. Whiting was
unable to locate Vargas, Jr. after using his last known address—5837 Christiancy
St, Detroit, MI1— to search two internet databases. [Id.] At the Court’s request,
Jacobs asked Defendants for the address—4900 Tarnow St., Detroit, MI—where
they served a person believed to be Vargas, Jr. with a subpoena to testify in the
case. [Id. at 7815] Jacobs’ counsel, Mr. Mohamed Nehme, went to both of Vargas,
Jr.’s previous known addresses. [Id.] The resident at 4900 Tarnow St., was actually
Javier Garcia, who had a different date of birth than Vargas, Jr., signed a
declaration that he has never lived on Christancy St., and that he does not know
Michelle Dotson.2 [Id.] Garcia’s declaration also mentioned that when he was
contacted by Defendants’ process server, he told them that he was not the Javier
Vargas, Jr., that witnessed Jacobs’ shooting. [Id.] After Mr. Nehme went to the
Christiancy Street address, the homeowner there said that the house was vacant
when she moved in a few years ago and that Vargas, Jr. did not live there. [Id. at

1
2

5837 Christiancy St, Detroit, MI is the location where all the major events leading up to the lawsuit occurred.
Michelle Dotson was Vargas, Jr.’s girlfriend at the time of Jacobs’ shooting and was also an eyewitness.

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7816] Jacobs also signed a declaration confirming that Javier Garcia is not the
eyewitness Javier Vargas, Jr. [Id. at 7815]
To declare Vargas, Jr. unavailable, the Court must find that Jacobs’ efforts to
find Vargas, Jr. were reasonable. Lucas v. Chance. 121 Fed. App’x 77, 80 (6th Cir.
2005). After reviewing the record and Jacobs’ additional caselaw, the Court
maintains that Jacobs’ efforts did not meet the necessary standard to declare a
witness unavailable. Although Jacobs’ cases are instructive, the cases are
distinguishable. The Court finds that (1) the Sixth Circuit’s standard for
unavailability in civil cases is more demanding than the cited criminal cases, and
(2) the Court does not find Jacobs’ actions “reasonable” and “diligent” as required
by relevant caselaw. Moritz, 692 F. App’x at 251.
The Sixth Circuit discusses the meaning of unavailability in civil cases in
Chance. 121 Fed. App’x at 80. Lucas explains that a party must be unable to
procure a declarant’s attendance “by process or other reasonable means.” Id.
(emphasis added). Lucas admonished the hearsay proponents for not attempting to
subpoena the declarant prior to arguing that the declarant was unavailable. Id.
Although Jacobs states that Defendants had Vargas, Jr. on their witness list and
stated that they subpoenaed him, relying solely on Defendants’ actions to produce
a witness favorable to an opposing party is unreasonable, especially when Vargas,
Jr. was identified as a potential fact witness in the Initial Disclosures, Witness
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Lists, and as a “Will Call” witness in Plaintiff’s section of the Joint Final Pre-Trial
Order. [ECF No. 285-1, Pg.ID 8213]
The Court also finds that Jacobs’ efforts differ from the detective’s in
Moritz, because Jacobs’ efforts were not “diligent.” See DILIGENT, Black's Law
Dictionary (11th ed. 2019) (defining diligent as “persistent in doing something” or
a “steady effort”). Moritz explains that the inquiry turns on “whether diligent goodfaith efforts” were made. “The ultimate question is whether the witness is
unavailable despite good-faith efforts undertaken prior to trial . . . .” Jackson v.
Stovall, No. 208-CV-10094, 2010 WL 1754446, at *13 (E.D. Mich. Apr. 12,
2010), report and recommendation adopted, No. 08-CV-10094-DT, 2010 WL
1754445 (E.D. Mich. Apr. 29, 2010), aff'd, 467 F. App’x 440 (6th Cir. 2012)
(quoting Ohio v. Roberts, 448 U.S. 56, 74 (1980)) (emphasis added).
Jacobs did not make any attempts to find Vargas, Jr. until after Defendants
decided not to call him at trial. Jacobs listed Vargas, Jr. on his witness list on
February 12, 2016. [ECF No. 40, Pg.ID 283] Even if Jacobs relied on Defendant’s
efforts to locate Vargas, Jr., he had over four years to depose him. See 1337523
Ontario, Inc. v. Golden State Bancorp, Inc., 163 F. Supp. 2d 1111, 1120 (N.D. Cal.
2001) (explaining that the “fifth [804] category, however, requires that an attempt
be made to depose a witness as well as to seek his attendance as a precondition to
the witness being deemed unavailable”).
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Not only was Jacobs unable to show that Vargas, Jr. was unavailable under
Rule 804(a)(5), but Jacobs failed to satisfy Rule 804(b)(1). Rule 804 states that
even if a declarant is found unavailable, former testimony is not excluded from the
hearsay rule unless the testimony “is now offered against a party who had—or, in
a civil case, whose predecessor in interest had—an opportunity and similar motive
to develop it by direct, cross—, or redirect examination.” Fed. R. Evid.
804(b)(1)(B). During the criminal trial, Defendants did not have any individuals
present to represent their interests. Jacobs has not shown that Defendants’ interests
were represented during the Wayne County Prosecutor’s Office’s questioning of
Vargas, Jr. in Jacobs’ criminal trial. Hannah v. City of Overland, Mo., 795 F.2d
1385, 1390 (8th Cir. 1986).
Alternatively, Jacobs argues that Vargas, Jr.’s former testimony is
admissible under Federal Rule of Evidence 807—the residual hearsay rule. Rule
807 should only be used in rare and exceptional circumstances. Pozen Inc. v. Par
Pharm, Inc., 696 F.3d 1151, 1161 (Fed. Cir. 2012). Rule 807 allows testimony that
would otherwise be excluded if:
(1) the statement is supported by sufficient guarantees of
trustworthiness—after considering the totality of circumstances under
which it was made and evidence, if any, corroborating the statement;
and
(2) it is more probative on the point for which it is offered than any
other evidence that the proponent can obtain through reasonable efforts.

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Fed. R. Evid. 807. However, a party cannot use Rule 807 to avoid calling live,
available witnesses. United States v. Barlow, 693 F.2d 954, 961 (6th Cir.
1982). Barlow recognized that a witness must first be found “unavailable”
before a party may invoke Rule 807. Id.; see also United States v. Hsia, 87 F.
Supp. 2d 10, 16 (D.D.C. 2000) (“For an out-of-court statement of a declarant
to come in under Rule 807, the proponent of the testimony must demonstrate
(1) that the declarant is unavailable, (2) that it has made reasonable efforts to
make the declarant available for trial . . . .”).
Jacobs also failed to comply with Rule 807’s notice requirement. Rule
807(b) requires that “before the trial or hearing, the proponent give[] an
adverse party reasonable notice of intent to offer the statement and its
particulars.” Fed. R. Evid. 807(b). As Defendants indicate, Jacobs did not
provide any notice of his intent to introduce Vargas, Jr.’s prior testimony until
after the trial began. See, e.g., United States v. Bachsian, 679 F.3d 1131, 1142
(9th Cir. 2012) (holding that a party must comply with Rule 807(b) unless the
requirement should be excused). The Court finds that Jacobs’ has not met the
requirements necessary to invoke Rule 807.
C. “Empty-Chair Defense”
Jacobs argues that Vargas Jr.’s absence omitted several important facts that
Defendants capitalized on to “make-up facts to bolster [their] case.” [ECF No. 277,
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Pg.ID 7822] Jacobs further asserts that the Court must determine from the “totality
of the circumstances,” including the substance of the comments, their frequency,
their potential relevancy to the important issues before the jury, the manner in
which the parties and the court treated the comments, the strength of the case, and
the ultimate verdict, whether a party’s arguments were inappropriate and
influenced the jury. City of Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d at 756.
Jacobs specifically argues that Vargas, Jr. testified that he told the officers
that he saw Jacobs walk around the side of the house, which gave them notice that
Jacobs would come through the back door. Jacobs also asserts that Vargas, Jr.’s
testimony that he heard two gun shots, then heard someone shout “Detroit Police”
supports Jacobs’ theory that he was shot before the officers announced themselves.
Jacobs also alleges that Vargas, Jr. never testified that Alam protected him during
the shooting.
In response, Defendants assert that Vargas, Jr.’s testimony would not rebut
the testimonies of Sergeant Abdella, Sergeant Guntzviller, or Lieutenant Sullivan,
which were presented in Defendants’ case-in-chief. Defendants argue that a
rebuttal witness must respond to new information contained in an opponent’s casein-chief. United States v. 9.345 Acres of Land, 2016 WL 5723665, at *10 (M.D.
La. Sept. 30, 2016); see also Melgar v. Zicam LLC, 2015 WL 5255391, at *2 (E.D.
Cal. Sept. 9, 2015). Although 9.345 Acres and Melgar are nonbinding, their
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principles are consistent with the Sixth Circuit’s reasoning in Benedict v. United
States, which opines that “evidence is new if, under all the facts and circumstances,
. . . the evidence was not fairly and adequately presented to the trier of fact before
the defendant’s case-in-chief.” 822 F.2d 1426, 1429 (6th Cir. 1987).
Defendants argue that Vargas, Jr.’s testimony involves events that occurred
inside the home and is irrelevant to Jacobs’ statements made hours later while
Jacobs was in custody. To support this assertion, Defendants indicate that their
witnesses 1) Sergeant Abdella, 2) Sergeant Guntzviller, 3) Lieutenant Sullivan, 4)
Dr. Loynd, 5) Dr. Lemmen, 6) Ms. Sanchez, and 7) Corporal Benton, did not
provide testimony of what occurred inside the home in the presence of Vargas, Jr.
or Ms. Dotson. Absent such testimony in their case-in-chief, Defendants argue that
Vargas, Jr.’s testimony would not rebut any of their witnesses.
Defendants also assert that Vargas, Jr. cannot properly rebut the testimony of
Kimbrough or Alam because both of those witnesses were called during Jacbos’
case-in-chief. Defendants then argue that courts routinely admonish “back-door”
attempts to label new evidence rebuttal evidence, when it should have been
introduced during a plaintiff’s case-in-chief. See, e.g., Life Plus Intern. v. Brown,
317 F.3d 799, 804 (8th Cir. 2003) (opining that a party cannot “get admitted
through the back door of rebuttal evidence that which the district court had
correctly barred as being untimely disclosed at the front door”).
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Defendants further argue that they did not “make-up” facts in Vargas, Jr.’s
absence. Although Vargas, Jr. may not have testified that Alam shielded him, he
did not refute that assertion, and it is supported by Alam’s testimony during the
preliminary exam, his deposition, the criminal trial, the instant trial, and by Ms.
Dotson’s testimony at the preliminary exam and the criminal trial.
Jacobs also argues that Defendants improperly told the jury about the
prosecutor’s decision-making process in determining whether to press charges.
Jacobs claims that Defendants’ statements were problematic because there was no
evidence admitted regarding what a prosecutor considers before bringing charges.
In response, Defendants argue that the Court instructed the jury that closing
statements were not evidence. Mr. Paddison, Counsel for Mr. Kimbrough, further
asserts that he did not talk about the substance of Vargas, Jr.’s statements and that
it was entirely appropriate to reference the physical documents that the
prosecutor’s office had in its possession. Sergeant Guntzviller and Lieutenant
Sullivan testified that Jacobs’ recorded statements, written statements,
photographs, diagrams, and reports comprised the “police jacket” that was given to
the Wayne County Prosecutor’s Office.
Defendants further argue that they submitted this information to remind the
jury that a malicious prosecution claim fails if the jury finds that probable cause
nevertheless existed based on other information. Darrah v. City of Oak Park, 255
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F.3d 301, 312 (6th Cir. 2001). Given that the second element of the malicious
prosecution claim jury instruction required “there was no probable cause for the
criminal prosecution,” the Court finds that Defendant’s reference to the “police
jacket,” that witnesses previously testified about in Defendants case-in-chief, was
appropriate.
The Court finds that the City of Cleveland v. Peter Kiewit Sons’ Co. factors
are not met. Defendants have provided adequate reasons to support the frequency
of their comments regarding Vargas, Jr., and the comments themselves.
Defendants have also established that their comments regarding Vargas, Jr. were
not impermissible. As Defendants indicate, they did not reference the substance of
Vargas, Jr.’s testimony and only conveyed that Vargas, Jr.’s testimony—along
with Ms. Dotson’s—was included in the complete portfolio of documents
submitted to the prosecutor in Jacobs’ criminal trial. The Court also agrees that
Defendants’ statements about Vargas, Jr. were not unfairly misleading to the jury
because everything that Defendants said was supported by previous statements
during Jacobs’ preliminary examination, criminal trial, and prior depositions. After
examining the “totality of the circumstances,” it is apparent that Defendants’
comments concerning Vargas, Jr. were appropriate and the Court’s decision to
allow them was within its proper scope of discretion.

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D. Testimony of Mary Gross
Jacobs argues that the Court improperly limited the scope of discussion
during Ms. Mary Gross’ testimony. Jacobs contends that he should have been
permitted to inquire about Gross’ previous conversations with Defendants’
attorneys. During Jacobs’ case-in-chief, he examined Ms. Mary Gross, a former
Detroit Police Department Evidence Technician, who no longer works for the City
of Detroit. Jacobs’ counsel inquired whether Ms. Gross had met with Defense
counsel prior to her testimony. Jacobs’ counsel then inquired about the substance
of Ms. Gross’ communications with Defense counsel. Following written motions
arguing whether Ms. Gross was protected by attorney-client privilege or the work
product doctrine, the Court ruled on the record that she was protected by both
privileges, and limited questions about her conversations with Defense counsel to
whether she met with them, how long they talked, and when they met. [ECF No.
273]
Jacobs once again argues that Ms. Gross should not be protected by
attorney-client privilege because she no longer works for the City of Detroit and
that the City of Detroit is not a party to the lawsuit. Jacobs’ further asserts that any
protection Ms. Gross may receive from attorney-client privilege only extends to
communications and not facts. Since Jacobs was not permitted to question Ms.

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Gross about the substance of her conversations with Defense counsel, Jacobs
argues that he could not adequately establish bias.
“Privileged communications between an employee and corporate counsel
should not automatically lose their protected status upon the employee leaving the
company.” Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303, 305 (E.D. Mich.
2000). The party advocating for attorney-client privilege must establish that the
witness’ communications “differed in some relevant way from counsel’s
communications with any other third-party witness.” Id. at 306.
Defendants analogize Ms. Gross’ situation to In re Allen. 106 F.3d 582,
606 (4th Cir. 1997). In re Allen established that the attorney-client privilege
applied to a former employee. Id. The Fourth Circuit concluded that 1) the former
employee was an employee during the relevant time period and possessed
information relevant to the investigation; 2) counsel interviewed the former
employee at the direction of her client to provide legal advice; and 3) counsel
needed information from the former employee to develop legal advice and strategy
for her client. Id.
Similarly, Peralta v. Cendant Corp., is also analogous. 190 F.R.D. 38 (D.
Conn. 1999). In Peralta, the court found that conversations between a former
employee and counsel were privileged. Id. at 41. The court reasoned that
communications between a former employee and counsel are privileged “if the
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nature and purpose” of the communications is “to learn facts related to plaintiff’s
termination that [former employee] was aware of as a result of her employment.”
Id. The Court looks to Peralta to further illustrate the attorney-client privilege for
former employees:
The distinction drawn by the Court between attorney-client privileged
and non-privileged communications with former employees should not
be difficult to apply if the essential point is kept in mind: did the
communication relate to the former employee's conduct and
knowledge, or communication with defendant's counsel, during his or
her employment? If so, such communication is protected from
disclosure by defendant's attorney-client privilege under Upjohn. As to
any communication between defendant's counsel and a former
employee whom counsel does not represent, which bear on or otherwise
potentially affect the witness's testimony, consciously or
unconsciously, no attorney-client privilege applies.
Id. at 41-42. Following this reasoning, Ms. Gross is protected because Ms.
Gross was a former employee and the communication related to her “conduct
and knowledge” during her employment with the City of Detroit.
Jacobs further argues that the work product doctrine is inapplicable because
Ms. Gross is not a party to the suit, and the doctrine does not prevent underlying
facts from being produced. Jacobs asserts that Defendants’ attempt to invoke the
work product doctrine “suggests that Defense Counsel created a script or
memorandum outline for Ms. Gross to testify from.” [ECF No. 277, Pg.ID 7827]
Not only is this assertion unsupported, but it is incorrect. In re Allen ruled that
counsel’s notes and interview summary with a former employee were protected.
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106 F.3d at 608. Although Jacobs is correct that the attorney-client privilege “does
not protect disclosure of the underlying facts,” Ms. Gross fully testified about her
involvement with investigating 5837 Christiancy Street on the night in question.
Asking Ms. Gross about the substance of her communications with defense
counsel would be akin to asking, “what did you say or write to the attorney?” The
Supreme Court disallowed such questions in Upjohn Co. v. United States, 449 U.S.
383, 396 (1981).
As for Jacobs’ argument that Ms. Gross is not a party to the case nor is the
City of Detroit, the Court is persuaded by Defendants’ proffered case, Coleman v.
City of New York, 1999 WL 493388, at *2 (S.D.N.Y. July 8, 1999). Coleman
explains:
[T]he Corporation Counsel’s discussion with non-adverse City
employees about their deposition in a case in which the City (or City
agency) is a defendant is protected by the City’s attorney-client and/or
work-product privilege, regardless of whether the employee also asks
for representation in connection with the deposition . . . .
Id. Coleman is analogous to the instant case because Kimbrough requested
that the City of Detroit represent him. Ms. Gross—as a current or former
employee of the city—is protected by the city’s attorney-client privilege.

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E. Denial of Bill Cousins as Expert Rebuttal Witness
Jacobs argues that the Court erred in preventing Mr. Bill Cousins
(“Cousins”) from serving as an expert witness. Jacobs sought to introduce
Cousins, a regular instructor of police procedure, to rebut Kimbrough and
Alam’s testimonies that it was appropriate to wear civilian clothing during the
execution of an arrest warrant. Cousins’ testimony was also sought to rebut
Weinman’s testimony that he did not violate protocol when he did not tell
Jacobs that there were law enforcement agents in his home.
To support his argument, Jacobs relies on Daubert v. Merrell Dow
Pharms., 509 U.S. 579 (1993). Jacobs argues that Cousins’ testimony would
have “assist[ed] the trier of fact in determining whether Defendants’ conduct
on the scene was objectively reasonable and consistent with the accepted
standards of federal procedures, practices and training.” [ECF No. 277, Pg.ID
7830] Jacobs further asserts that Cousins’ testimony would have assisted the
jury “to understand or determine a fact in issue.” Fed. R. Evid. 702.
Federal Rule of Evidence 702 governs the admissibility of expert
witness testimony. It states:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:

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(a) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed.R.Evid. 702.
Daubert v. Merrell Dow Pharms assigns the district court judge a
“gatekeeping” function. 509 U.S. 579, 597 (1993). The district court must
ensure that the expert witness’ testimony “both rests on a reliable foundation
and is relevant to the task at hand.” Id. The Court must “make an initial
assessment of the relevance and reliability of the expert testimony.”
Greenwell v. Boatwright, 184 F.3d 492, 498 (6th Cir. 1999).
The Court finds that Cousins’ testimony is not relevant to contested
facts and it would not have helped the jury determine a fact in issue. Cousins’
testimony would have focused on what clothes Kimbrough and Alam were
wearing. The only possible claim that Cousins’ testimony could involve is
Jacobs’ excessive force claim. Defendants concede that Jacobs was shot by a
bullet from Kimbrough’s gun. The only fact at issue is whether Jacobs pointed
his gun at the officers or not. To the extent that Jacobs may not have pointed
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his weapon at the officers3 if they were wearing more prominent clothing, both
Kimbrough and Alam testified that they announced themselves and were
wearing their official badges. Cousins’ testimony would have been more
likely to confuse the issues or mislead the jury than to assist the jury with
determining whether Defendants used excessive force.
The Court also finds that Cousins’ potential testimony concerning
Weinman’s decision not to alert Jacobs about the officers in his neighbor’s
residence would not have been permissible. As Defendants indicate, the
reasonableness “of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989).
Cousins’ testimony would not have assisted the jury with determining
reasonableness because he even acknowledges in his report that there are no
“official guidelines or procedures” that would have governed Weinman’s
actions. [ECF No. 285-1, Pg.ID 8230] (quoting Bill Cousins’ Expert Report).
F. Cumulative Errors
Jacobs asserts that even if no single error would be sufficiently prejudicial to
justify a new trial, the cumulative effect of the Court’s errors warrants a new trial.

3

Whether Jacobs pointed his gun at the officers was a disputed issue between the parties at trial and Jacobs
maintains that he did not point his gun at Defendants Kimbrough and Alam.

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Citing United States v. Ashworth, Jacobs contends that cumulative errors warrant a
new trial if they were so severe as to deny the movant a fundamentally fair trial. 
836 F.2d 260, 267 (6th Cir.1988).
For the reasons set forth above, the Court finds that all of the decisions that
Jacobs contests were within the proper discretion of the Court. Since the Court
finds that there were no errors, Jacobs’ claim of cumulative error fails as a matter
of law. Getsy v. Mitchell, 495 F.3d 295, 317 (6th Cir. 2007) (en banc).
III.

CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Jacobs’ Motion for a New Trial [#277]

is DENIED.

s/Denise Page Hood
DENISE PAGE HOOD
Chief Judge

DATED: June 9, 2020

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