Parnell v. Detroit, City of et al
Filing
116
ORDER Granting in part Plaintiff's 61 Motion in Limine; Granting in part and Denying in part Without Prejudice Defendants' First 62 Motion in Limine; Granting Defendants' Second 63 Motion in Limine; Granting Plaintiff' ;s 64 Motion in Limine; Granting Defendants'Third 65 Motion in Limine; Denying Plaintiff's 66 Motion in Limine; Granting in part Plaintiff's 67 Motion in Limine; Granting Defendants' Fourth 68 Motion in Limine; Gra nting in part Plaintiff's 69 Motion in Limine; Granting in part and Denying in part Plaintiff's 70 Motion in Limine; Denying in part Fifth 71 Motion in Limine; Denying Defendants' Sixth 72 Motion in Limine; Granting in pa rt and Denying in part Defendants' Seventh 73 Motion in Limine; Granting Defendants' Eighth 74 Motion in Limine; Denying Without Prejudice Defendants' Ninth 75 Motion in Limine; Granting in part and Denying in part Defendants' Tenth 76 Motion in Limine; finding as moot Defendants'Eleventh 77 Motion in Limine; Granting in part and Denying in part Defendants' Twelfth 78 Motion in Limine. Signed by District Judge Gershwin A. Drain. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TERRY PARNELL,
Plaintiff,
v.
Case No.: 17-12560
Honorable Gershwin A. Drain
RICHARD BILLINGSLEA, et al.,
Defendants.
___________________________/
ORDER GRANTING IN PART PLAINTIFF’S MOTION [#61], GRANTING
IN PART AND DENYING WITHOUT PREJUDICE IN PART
DEFENDANTS’ FIRST MOTION IN LIMINE [#62], GRANTING
DEFENDANTS’ SECOND MOTION IN LIMINE [#63], GRANTING
PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE EVIDENCE OF
DISMISSED/SETTLED CLAIMS [#64], GRANTING DEFENDANTS’
THIRD MOTION IN LIMINE [#65], DENYING PLAINTIFF’S MOTION IN
LIMINE [#66], GRANTING IN PART PLAINTIFF’S MOTION IN LIMINE
[#67], GRANTING DEFENDANTS’ FOURTH MOTION IN LIMINE [#68],
GRANTING IN PART PLAINTIFF’S MOTION IN LIMINE [#69],
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION
IN LIMINE [##70], DENYING IN PART DEFENDANTS’ FIFTH MOTION
IN LIMINE [#71], DENYING DEFENDANTS’ SIXTH MOTION IN LIMINE
[#72], GRANTING IN PART AND DENYING IN PART DEFENDANTS’
SEVENTH MOTION IN LIMINE [#73], GRANTING DEFENDANTS’
EIGHTH MOTION IN LIMINE [#74], DENYING WITHOUT PREJUDICE
DEFENDANTS’ NINTH MOTION IN LIMINE [#75], GRANTING IN PART
AND DENYING IN PART DEFENDANTS’ TENTH MOTION IN LIMINE
[#76], FINDING DEFENDANTS’ ELEVENTH MOTION IN LIMINE [#77]
MOOT AND GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ TWELFTH MOTION IN LIMINE [#78]
I.
INTRODUCTION
The instant 42 U.S.C. § 1983 action is scheduled for trial on March 10,
2020. Presently before the Court are eighteen motions in limine filed by the
parties. ECF Nos. 61-78. These matters are fully briefed and a hearing was held
on February 27, 2020.
II.
FACTUAL BACKGROUND
The facts giving rise to this action began on the evening of January 14, 2017,
when Plaintiff Terry Parnell was at a friend’s home on Greensboro street in
Detroit, Michigan. Defendants, Detroit Police Officers Richard Billingslea and
Hakeem Patterson, were dispatched to respond to “a shots in progress” call on
Greensboro. Billingslea claimed to witness Plaintiff on his friend’s front porch
shooting a gun towards the patrol car and run back into the house. Billingslea
called over the police radio that shots had been fired and several officers arrived on
the scene. Even though Plaintiff voluntarily exited the house, it is alleged that he
was thrown to the ground and beaten; suffering considerable bruising, lacerations,
pain and suffering from the beating.
Plaintiff further asserts that based on Defendants’ false police reports,
Plaintiff was charged with carrying a concealed weapon, assault with a dangerous
weapon and felony firearm. On the day set for trial, the prosecuting attorney
concluded that Billingslea’s preliminary examination testimony was impossible
2
based on the physical evidence. She immediately decided to dismiss the case and
the trial judge granted the dismissal. Plaintiff asserts that he has developed a
multitude of ailments as a result of his encounter with Defendants, as well as due
to his subsequent unlawful detention and criminal prosecution.
III.
LAW & ANALYSIS
A. Standard of Review
The purpose of a motion in limine is to ensure the evenhanded and
expeditious management of trials by eliminating evidence that is clearly
inadmissible. Ind. Ins. Co. v. General Elec. Co., 326 F. Supp.2d 844, 846 (N.D.
Ohio 2004) (citing Johasson v. Lutheran Child & Family Servs., 115 F.3d 436,
440 (7th Cir. 1997)). A court should exclude evidence on a motion in limine only
when that evidence is determined to be clearly inadmissible on all potential
grounds. Id. When a court is unable to determine whether or not certain evidence
is clearly inadmissible, evidentiary rulings should be deferred until trial so that
questions of foundation, relevancy and potential prejudice can be resolved in the
proper context. Id. Whether or not to grant a motion in limine falls within the
sound discretion of the trial court. Branham v. Thomas Cooley Law Sch., 689 F.3d
558, 560 (6th Cir. 2012).
Rules 401 and 402 of the Federal Rules of Evidence permit the admission of
only relevant evidence.
Evidence that is irrelevant is inadmissible. See Fed. R.
3
Evid. 402. Evidence is relevant if it has any tendency to make the existence of a
material fact more or less probable than it would be without the evidence. See Fed.
R. Evid. 401. Under Rule 403, relevant evidence may be excluded “if its probative
value is substantially outweighed by a danger of . . . unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
B. Plaintiff’s Motions in Limine
1. Motion to Preclude Defendants’ Proposed Exhibits
Plaintiff moves in limine to preclude the Defendants from admitting four
exhibits during trial. Specifically, Plaintiff seeks to exclude: (1) Exhibit BB, a
Register of Actions from the 43rd District Court; (2) Exhibit CC, a Register of
Actions from the 36th District Court; (3) Exhibit DD, a Certification of Court
Disposition and (4) Exhibit EE, Report of Calmeze Dudley.1
Defendants argue that Exhibits BB, CC, DD are all records that stem from a
June 1, 2015 arrest of Plaintiff for driving on a suspended license. Defendants
maintain that these exhibits are relevant to prove that Plaintiff had a warrant out for
his arrest on the date of the underlying incident giving rise to this action.
Defendants argue that Plaintiff had no right to be at large in January of 2017 and
that the warrants establish probable cause for his arrest.
Plaintiff’s motion requested exclusion of additional exhibits; however, Plaintiff
only continues to object to the four identified above.
1
4
Here, because the Defendants admit that they did not know Plaintiff had a
warrant at the time of his arrest in January of 2017, the warrant is irrelevant to
whether the Defendants had probable cause to arrest Plaintiff for carrying a
concealed weapon, assault with a dangerous weapon and felony firearm. Logsdon
v. Hains, 492 F.3d 334 (6th Cir. 2007) (“Probable cause exists if the facts and
circumstances known to the officer warrant a prudent man in believing that the
offense has been committed.”); Devenpeck v. Alford, 543 U.S. 146, 152 (2004)
(“Whether probable cause exists depends upon the reasonable conclusion to be
drawn from the facts known to the arresting officer at the time of the arrest.”).
As to Exhibit EE, this is the subject of Plaintiff’s Motion in Limine to
Preclude Experts and Witnesses Not Disclosed During Discovery. The Court will
address this exhibit when it resolves this motion.
Based on the foregoing, the Court will grant in part Plaintiff’s Motion in
Limine to Preclude Defendants’ Proposed Exhibits. Exhibits BB, CC, and DD are
inadmissible.
2. Plaintiff’s Motion in Limine to Preclude Evidence of
Dismissed/Settled Claims
Plaintiff also moves in limine to exclude from evidence the fact that Plaintiff
originally filed suit against the City of Detroit, but later agreed to dismiss the City
from this action. Defendants have failed to file a response to this motion. As such,
5
the Court will grant Plaintiff’s Motion in Limine to Preclude Evidence of
Dismissed/Settled Claims.
3. Plaintiff’s Motion in Limine to Set Procedure for Exercising
Peremptory Challenges
Plaintiff’s next motion in limine seeks an order from this Court “plac[ing]
the defendant on notice that challenges to prospective minority jurors must be
based on a race-neutral reasons and to preclude the defendants from exercising a
peremptory challenge dismissing an African American citizen prior to a finding by
the Court that the challenge is based on a race-neutral reason.
Plaintiff’s request is contrary to the settled practice for Batson challenges.
Batson v. Kentucky, 476 U.S. 79 (1986). If Plaintiff believes that Defendants have
used a peremptory strike to exclude a juror based on race, Plaintiff must first
establish a prima facie case of racial discrimination. Next, the burden shifts to the
Defendants to come forward with a race-neutral explanation. Finally, if a raceneutral explanation is given, this Court must decide whether the opponent of the
strike has proved purposeful discrimination.
Accordingly, the Court will deny Plaintiff’s Motion in Limine to Set
Procedure for Exercising Peremptory Challenges.
4. Plaintiff’s Motion in Limine to Compel Defendant to Produce
Police Employees During Plaintiff’s Case
6
Plaintiff has requested that Defendants make City employees available for
Plaintiff’s case. Plaintiff maintains that during the depositions, each witness and
Defendant agreed to accept service of trial subpoenas on the city Law Department.
Defendants counter that the Federal Rules of Civil Procedure require that the
party who is required to attend the trial must be personally served with a subpoena.
Defendants therefore do not agree to Plaintiff’s present motion. Moreover,
Defendants indicate that Evidence Technician Raymond Diaz, who Plaintiff failed
to depose, will be out of town until March 12, 2020, and another witness, Captain
Mark Thornton, has retired from the police department.
In reply, Plaintiff argues that because there are issues with witnesses
Thornton and Diaz, Defendant should be required to produce Officer Diaz or give
his full contact information as soon as possible so that a de bene esse deposition
can be conducted. Plaintiff also asserts that Thornton should be required to accept
service of the subpoena through the City’s law department.
At the hearing on this matter, counsel for Plaintiff indicated that the de bene
esse deposition of Officer Diaz has been taken. Accordingly, this aspect of
Plaintiff’s present motion is moot.
Upon consideration of the parties’ briefing and arguments during the
hearing, the Court will grant in part Plaintiff’s Motion to Compel Defendants to
Produce Police Employees During Plaintiff’s Case. The City Law Department
7
shall accept service of trial subpoenas for current Detroit Police Department
employees. Additionally, Defendants’ counsel shall provide Plaintiff’s counsel
with contact information for Captain Mark Thornton no later than March 3, 2020.
5. Plaintiff’s Motion in Limine to Preclude Experts and Witnesses
Not Disclosed During Discovery
Plaintiff next moves for an order precluding Defendants’ proposed expert,
Calmeze Dudley, M.D.2 Plaintiff claims Dudley failed to provide a report, and that
Dudley will provide irrelevant testimony, and even if the testimony has some
relevance, it is substantially more prejudicial than probative.
Dr. Dudley was disclosed to Plaintiff on Defendants’ witness list and
Plaintiff was examined by Dr. Dudley, who prepared a report that was provided to
Plaintiff on July 3, 2019, along with Dr. Dudley’s curriculum vitae and a
Compliance Statement.
In Response, Plaintiff claims that the independent medical examination
(“IME”) performed by Dr. Dudley was done in another, ongoing lawsuit Plaintiff
has filed against the City of Detroit and some of its officers. Plaintiff argues that
any probative value from Dudley’s report is substantially outweighed by the
danger of unfair prejudice. Plaintiff asserts that the jury will be confused because
Plaintiff’s motion originally sought to exclude three experts, Calmeze Dudley,
M.D., Amanda A. Crooker, Michigan State Police (“MSP”) Specialist Latent
Prints, and Michael Kusluski, MSP Forensic Scientist. In his reply brief, Plaintiff
indicates he now only seeks to preclude the testimony of Dudley.
2
8
Dr. Dudley’s examination concerned the incident at issue in the other lawsuit,
which occurred in October of 2016. Thus, Dr. Dudley’s ultimate conclusion that
“[t]he October 14, 2016 police incident did not result in any lasting or clinically
significant psychiatric sequelae, based on desk-side assessment and without
opportunity to review any relevant background records” will not assist the jury in
resolving the issues in this case. ECF No. 87-1, PageID. 1375.
As an initial matter, the Court notes that Defendants have failed to provide
any case authority supporting their position. Additionally, Defendants failed to file
the required motion for an independent medical examination establishing good
cause as required by Rule 35 of the Federal Rules of Civil Procedure. See Fed. R.
Civ. P. 35 (the court may order an IME only “upon motion for good cause [.]”).
Moreover, while the Court sees some relevance to Dudley’s report and
testimony, the Court also concludes that the probative value of this evidence is
outweighed by the danger of unfair prejudice. Dr. Dudley was asked to perform an
IME and reach a conclusion as to the psychological impact a 2016 police encounter
had on Plaintiff. He was not asked to assess the psychological impact from the
2017 encounter at issue herein. The danger that the jury will be confused
substantially outweighs the probative value of Dudley’s testimony and report.
Accordingly, the Court will grant in part Plaintiff’s Motion in Limine to Preclude
9
Experts and Witnesses not Disclosed during Discovery. Dr. Dudley is precluded
from testifying and his report, Defendants’ proposed exhibit EE, is inadmissible.
6. Plaintiff’s Motion in Limine to Preclude Prejudicial and
Irrelevant Questions and Answers
Plaintiff also moves to preclude evidence of his past alcohol use, criminal
history and second lawsuit against the City.
The Court agrees that Plaintiff’s prior DUI is irrelevant to the issues herein.
This aspect of Plaintiff’s Motion in Limine is granted.
As to evidence related to Plaintiff being laid off or fired, Defendants argue
that this may be relevant to the extent Plaintiff is seeking damages related to his
employment. At the hearing on this matter, Plaintiff’s counsel indicated he will
not be seeking lost wages damages. Accordingly, this aspect of Plaintiff’s motion
will be granted because work-related evidence is irrelevant to the issues in this
matter.
Additionally, Defendant argues that evidence of workers compensation is
relevant to the extent Plaintiff may be arguing injury to his back. This aspect of
Plaintiff’s motion will be denied without prejudice. The Court agrees that if
Plaintiff seeks damages from back injuries resulting from his encounter with
Defendants, this evidence may be relevant.
10
Defendant further argues that the fact Plaintiff fired a shotgun is relevant to
this lawsuit to the extent it involves a firearm. Defendant maintains that the fact
Plaintiff had “prior interactions with law enforcement that involved firearms . . .
has a tendency to make the fact that he was involved in the firing of the gun on the
night of the incident more probable and therefore is relevant to this case.” ECF
No. 85, PageID.1337. This type of evidence is precluded pursuant to Rule 404(b),
which prohibits the admission of evidence of a crime or wrong to prove “a
person’s character in order to show that on a particular occasion the person acted in
accordance with that character.” Fed. R. Evid. 404(b)(1). Moreover, Defendants
have failed to advance any exception under Rule 404(b)(2). This aspect of
Plaintiff’s Motion will be granted.
Defendant further argues that evidence of Plaintiff’s prior lawsuit that
involved a motor vehicle accident wherein Plaintiff sustained a closed head injury
is relevant to rebut the damages claimed in the present lawsuit. This aspect of
Plaintiff’s motion is denied.
Defendant also seeks to introduce a 17-year-old concealed weapons
conviction. However, because this conviction is more than ten years old, it can
only be admitted if “its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect.” Fed. R. Evid.
609(b). Defendants argue this evidence is extremely probative given the issues in
11
this case. The court will grant this aspect of Plaintiff’s motion because it has not
been shown that the probative value of this evidence substantially outweighs its
prejudicial effect.
Lastly, Defendant argues that Plaintiff testified at his deposition that he
knew Defendant Billingslea kneed him because Bilingslea was the arresting officer
in the 2016 incident giving rise to Plaintiff’s other lawsuit against the City and its
officers. While Plaintiff testified that he knew Billingslea from the prior incident,
the details of the 2016 arrest are irrelevant to the issues before this Court. Thus,
this aspect of Plaintiff’s motion will be granted in part and denied in part. Plaintiff
can testify that he knew Billingslea from a previous encounter, but neither he nor
anyone else may testify to the details of the 2016 incident.
Based on the foregoing, the Court will grant in part and deny in part
Plaintiff’s Motion in Limine to Preclude Prejudicial and Irrelevant Questions and
Answers.
C. Defendants’ Motions in Limine
1. Defendants’ First Motion in Limine Regarding Subsequent
Criminal Allegations and the Duty Status of Defendants
Defendants’ First Motion in Limine seeks an order precluding Plaintiff from
using any evidence or giving any statement indicating that Defendants have been
the subject of criminal prosecutions, as well as preclude Plaintiff from offering
12
evidence concerning the duty status of the Defendants. Specifically, Plaintiff seeks
to impeach Billingslea by introducing evidence of his no contest plea to a charge of
obstruction of justice and his voluntary agreement to resign from his Michigan
Commission on Law Enforcement (MCOLES) certification, which precludes him
from employment in law enforcement.
The evidence Plaintiff seeks to introduce concerning Defendant Billingslea’s
conviction by plea of nolo contendere appears to be inadmissible. See Walker v.
Schaeffer, 854 F.2d 138, 143 (6th Cir. 1988) (“Rule 410 was intended to protect a
criminal defendant’s use of the nolo contendere plea to defend himself from future
civil liability.”) However, subsequent to briefing and oral argument on this issue,
Plaintiff filed supplemental authority standing for the proposition that a conviction
based on a nolo contendere plea may be admitted for impeachment purposes under
Rule 609 “if the Court determines the probative value of admitting this evidence
outweighs its prejudicial effect to the defendant.” United States v. Dennis, 532 F.
Supp. 625, 627 (E.D. Mich. 1982); United States v. Bazzi, No. 13-20893, 2014
U.S. Dist. LEXIS 68682 (E.D. Mich. May 20, 2014).
Because this authority was filed after the briefing and the hearing concluded,
Defendants have not had an opportunity to respond to Plaintiff’s supplemental
authority. As such, this aspect of Defendants’ motion will be denied without
prejudice. The Court will resolve whether evidence of Billingslea’s obstruction of
13
justice conviction may be admitted for impeachment purposes at the time this issue
arises during the trial. At that time, Defendants may likewise provide the Court
with supplemental authority on this issue.
As to Plaintiff’s request to admit evidence that Defendant Billingslea
resigned from MCOLES, Plaintiff fails to explain the relevance of this evidence.
Moreover, any relevance is substantially outweighed by the danger of unfair
prejudice pursuant to Rule 403. This aspect of Defendants’ motion will be granted.
Accordingly, the Court will grant in part and deny without prejudice in part
the Defendants’ First Motion in Limine Regarding Subsequent Criminal
Allegations and the Duty Status of Defendants [#62].
2. Defendants’ Second Motion in Limine Regarding Past or
Subsequent Officer Misconduct, Disciplinary History, Misconduct
Investigations, and Administrative, Legislative or Judicial
Hearing Transcripts or Records, and Findings or Judgments
Defendants also move in limine for an order precluding any reference to, or
discussion of, past or subsequent officer misconduct, disciplinary history,
misconduct investigations, and administrative, legislative, or judicial hearing
transcripts or recordings, and findings or judgments.
Plaintiff counters that Billingslea has admitted to his disciplinary and
misconduct history with the Department, therefore this is a party admission under
Rule 801(2). Plaintiff further argues that Rule 403 is not implicated because there
is an absence of unfair prejudice which “does not mean the damage to a [party]’s
14
case that results from the legitimate probative force of the evidence.” ECF No. 94,
PageID.1513.
Here, Plaintiff ignores that even though a statement may not be hearsay
under Rule 801(c), the statement must still be admissible pursuant to the other
rules of evidence. Rule 404(b) states 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.” Fed. R.
Evid. 404(b)(1).
This proposed evidence appears barred by rule 404(b).
Moreover, Plaintiff has not disclosed any other purposes for which this evidence
may be admitted pursuant an exception under 404(b).
Accordingly, the Court will grant Defendants’ Second Motion in Limine.
3. Defendants’ Third Motion in Limine Regarding Unrelated
Incidents Involving Allegations of Police Misconduct, Consent
Decree, or Police/Public Relations or Perceptions Generally
Defendants next seek an Order precluding Plaintiff from introducing
evidence of other cases or news articles about these other cases that involve
allegations of wrongful conduct by the Defendants, the Detroit Police Department,
the Wayne County Sheriff’s Office, or law enforcement generally. Defendants
further seek an Order excluding Plaintiff from introducing any evidence of the
consent decree with the City of Detroit.
Defendants argue this evidence is
irrelevant to the issues here. Even if the Court were to find some relevance to this
15
evidence, Defendants also argue that its probative value will be substantially
outweighed by the danger of unfair prejudice, confusion of the issues and undue
delay under Rule 403.
Lastly, Defendants argue that media articles are
inadmissible under Rule 807 because they contain hearsay.
The Court agrees with Defendants that evidence of media reports, the
Consent Decree and other instances of misconduct is irrelevant to the issues in this
case. Plaintiff does not advance any argument concerning the potential relevance
of this evidence, rather Plaintiff argues that the evidence may be appropriate for
impeachment purposes or if one of the Defendants “opens the door.” Such an
argument is too speculative. Moreover, any evidence of the Defendants’
misconduct on a separate occasion, either before or after the incident giving rise to
this action, would have no bearing on whether there was probable cause to arrest
Plaintiff. Such evidence would be classic Rule 404(b) evidence of other wrongs,
which is inadmissible unless an exception under Rule 404(b)(2) applies. For this
reason, the Court will grant Defendants’ Third Motion in Limine Regarding
Unrelated Incidents Involving Allegations of Police Misconduct, Consent Decree,
or Police/Public Relations or Perceptions Generally.
4. Defendants’ Fourth Motion in Limine Regarding Evidence that
Defendants are Represented and Indemnified by the City of
Detroit
16
In their Fourth Motion in Limine, Defendants seek an order precluding any
reference or discussion regarding the Defendant Officers being represented and
indemnified by the City of Detroit. In his Response, Plaintiff argues that he must
be permitted to introduce this evidence if offered for another purpose, such as
proving a witness’s bias or prejudice or proving agency, ownership or control.”
However, Plaintiff does not identify what other purpose this evidence would be
used to establish. Moreover, because the City is no longer a party, the exceptions
to the general rule are inapplicable here. Accordingly, Defendants’ Fourth Motion
in Limine will be granted.
5. Defendants’ Fifth Motion in Limine Regarding Medical Records
and Expert Witness Testimony
Defendants next move to exclude Plaintiff from introducing medical records
and from using Dr. Michael Abramsky because this evidence is irrelevant.
Defendant further argues that to allow this evidence would be a trial by ambush.
In response, Plaintiff has indicated he will not introduce any medical
records. As such, this aspect of Defendants’ Motion is moot.
As to Defendants’ request to exclude the testimony of Dr. Abramsky,
Plaintiff responds that he was evaluated in 2018 by Dr. Abramsky, who issued a
17
report in May of that year. Plaintiff further indicates that Defendants were served
with a copy of this report on May 22, 2018.
Defendants have failed to advance a proper basis for excluding this
evidence. Defendants received notice of this expert, who is board certified in
psychology and issued a report based on his examination of Plaintiff. Plaintiff
asserts that he has suffered emotional and physical issues as a result of his
wrongful beating, arrest, detention and prosecution. As such, Dr. Abramsky’s
testimony is relevant to Plaintiff’s claim for damages. Defendants’ Fifth Motion in
Limine Regarding Medical Records and Expert Witness Testimony will be denied
in part. Dr. Abramsky shall be permitted to testify.
6. Defendants’ Sixth Motion in Limine Regarding Punitive Damages
Defendants seek an order prohibiting Plaintiff from introducing testimony or
evidence or referencing punitive damages during trial. Defendants maintain that
Plaintiff has no evidence that any of the Defendants were motivated by evil intent,
or that they were recklessly or callously indifferent to Plaintiff’s civil rights. As
such, Defendants argue that punitive damages are unwarranted under the
circumstances of this case.
“A jury may be permitted to assess punitive damages in an action under §
1983 when the defendant’s conduct is shown to be motivated by evil motive or
18
intent, or when it involves reckless or callous indifference to the federally
protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). Here, there is
evidence upon which the jury may rely to conclude that Defendants acted with evil
intent or with reckless indifference to Plaintiff’s civil rights. As such, the Court
will deny Defendants’ Sixth Motion in Limine Regarding Punitive Damages.
7. Defendants’ Seventh Motion in Limine Regarding Testimony That
is Irrelevant and From Witnesses not Disclosed During Discovery
In their Seventh Motion in Limine, Defendants argue that Plaintiff has listed
numerous friends and family witnesses who cannot offer relevant testimony
because they were not present for the underlying incident giving rise to this action.
Defendants also argue that even if relevant, the testimony should be excluded
pursuant to Rule 403 because it poses a danger of confusing the issues, misleading
the jury, undue delay, wasting time and the presentation of cumulative evidence.
Defendants further complain that Plaintiff has listed records custodians from St.
John’s Hospital on Moross, the City’s Police Department, 36th District Court,
Wayne County Circuit Court, the City of Detroit and 911 calls and dispatch.
As to Plaintiff’s friends and family, these witnesses can offer relevant
testimony concerning Plaintiff’s emotional condition prior to the incident giving
rise to this action and after the incident. However, Plaintiff has listed fifteen
witnesses to offer testimony concerning Plaintiff’s damages. At the hearing on
this matter, Plaintiff’s counsel indicated that he intended to use no more than 3
19
three witnesses of this nature. While the Court agrees that these witnesses can
provide relevant evidence, the Court also finds that fifteen witnesses will
contravene Rule 403 because the probative value of all of this testimony will be
substantially outweighed by the dangers of presenting cumulative evidence. As
such, the Court will grant in part and deny in part Defendant’s Seventh Motion in
Limine. Plaintiff may use no more than 3 family and/or friend witnesses to provide
testimony on the issue of Plaintiff’s emotional state and/or damages.
8. Defendants’ Eighth Motion in Limine Regarding Irrelevant
Evidence of Employment
In Defendants’ Eighth Motion in Limine, they argue that Plaintiff should be
precluded from offering any testimony from Keith Rudicelli or any agents or
employees of Sur-Form Corporation, where Plaintiff has worked “off and on” for
three years. Defendants argue that Plaintiff was not working at the time the
incident giving rise to this action occurred so Plaintiff cannot claim any damages
as a result of missing work. As such, Rudicelli’s testimony is irrelevant to the
issues herein.
Plaintiff maintains that he spoke with Rudicelli, the plant manager at SurForm Corporation, about the incident giving rise to this action. Moreover, Plaintiff
argues that Rudicelli can offer testimony concerning Plaintiff’s need for time off to
attend court matters related to his criminal charges for carrying a concealed
weapon, assault with a dangerous weapon and felony firearm.
20
At the hearing on this matter, Plaintiff’s counsel indicated that Plaintiff was
not seeking lost wages damages. As such, Rudicelli’s testimony is irrelevant to the
issues herein. The Court will therefore grant Defendants’ Eighth Motion in Limine
Regarding Irrelevant Evidence of Employment.
9. Defendants’ Ninth Motion in Limine Regarding Detroit Police
Department Policies
In their Ninth Motion in Limine, Defendants ask that the Court preclude
Plaintiff from introducing any Detroit Police Department policies into evidence,
including the department’s use of force policy, arrest policy, written directive
system policy, Oath of Office policy, code of ethics policy, code of conduct policy
and discipline/misconduct policy. Defendants argue the Monell claim has been
dismissed and the remaining issues in this case are not whether the officers
violated department policy, but whether they violated Plaintiff’s constitutional
rights. Defendants also argue that even if the policies are relevant, they should still
be excluded pursuant to Rule 403 because this evidence may confuse and mislead
the jury.
Plaintiff counters that the policies are relevant to whether Defendants’
actions showed deliberate indifference, and whether their conduct was willful and
reckless given their knowledge of the department’s policies.
21
The Court notes that neither party provides case authority on this issue.
Contrary to Defendants’ argument, Defendants’ state of mind is in issue because
Plaintiff is seeking punitive damages. Smith v. Wade, 461 U.S. 30, 56 (1983) (“A
jury may be permitted to assess punitive damages in an action under § 1983 when
the defendant’s conduct is shown to be motivated by evil motive or intent, or when
it involves reckless or callous indifference to the federally protected rights of
others.”). As such, there may be some relevance to the issue of whether Defendants
acted with a callous indifference or evil motive when they were aware of the
department’s policies and violated them.
Moreover, a review of the law on this issue reveals that district courts in this
Circuit do not categorically exclude this evidence. See Luna v. Bell, No. 3:11-cv00093, 2013 U.S. Dist. LEXIS 202793, *20 n.3 (M.D. Tenn. Aug. 1, 2013)
(holding that correctional facility policies are relevant to the issue of whether a
defendant acted within constitutional bounds); see also Alvarado v. Oakland
County, 809 F. Supp.2d 680, (E.D. Mich. 2011) (concluding that expert could
testify on nationally accepted police practices regarding the use of excessive force,
as well as local policies regarding the use of excessive force). While district courts
in this Circuit have interpreted Sixth Circuit decisions to allow expert testimony
regarding recognized police policies and procedures, such testimony is permitted
so long as the expert does not provide a legal conclusion. See Luna, 2013
22
U.S.Dist. LEXIS 202793, *20 n.3 (“The Sixth Circuit has made clear that city
policies do not determine constitutional law. However, this does not make local or
state policies irrelevant to the issue of whether a defendant acted within
constitutional bounds. As a sister court has explained, the Sixth Circuit [] did not
rule that such standards could not be considered by a fact finder, only that they
cannot be understood to define the constitutional boundaries by which an officer’s
conduct is to be judged.”).
Plaintiff does not provide the Court with sufficient information concerning
the specific policy provisions that have been violated. Because Plaintiff has failed
to articulate which policy provisions have been violated and through which witness
this evidence is to come in, the Court will deny without prejudice Defendants’
Ninth Motion in Limine. If Plaintiff seeks to introduce these policies, and the
Court allows their admission, the Court will require a limiting instruction stating
that violation of department policy does not equate to a constitutional violation.
10. Defendants’ Tenth Motion in Limine Regarding Proposed
Testimony from the Criminal Defense Attorney and the Judge
from Plaintiff’s Criminal Proceedings
Defendants further seek to exclude the testimony of the trial judge who
presided over, and the defense attorney who represented, Plaintiff during his
prosecution for firearms offenses and assault with a dangerous weapon. Defendants
argue their testimony is irrelevant, and even if relevant, it would violate Rule 403.
23
Defendants assert that allowing the trial judge to testify would be highly
prejudicial. However, the Defendants’ argument rests solely on the following:
“‘[h]aving the judge from Plaintiff’s criminal proceedings testify in the present
case would surely not present enough probative value to overcome the high bar set
by Fed. R. Evid. 403.” ECF 76, PageID.1208. Defendants provide no case
authority for their request. Defendants further assert that allowing Plaintiff’s
criminal defense attorney to testify would create “blatant and obvious potential
conflicts with the attorney/client privilege and/or the work product doctrine.” Id.
Plaintiff responds that both witnesses have personal knowledge of his
criminal prosecution which is the subject of Plaintiff’s malicious prosecution
claims against Billingslea and Mack. Plaintiff asserts the trial judge’s testimony is
“highly relevant to the dismissal of the criminal case.” Id., PageID.1301. Plaintiff
further argues that his defense attorney can provide relevant testimony concerning
Plaintiff’s “emotional damages which she observed in the course of the serious
prosecution that attempted to put Plaintiff behind bars for decades for a crime he
didn’t commit.” Id.
Here, the Court finds that Plaintiff’s defense counsel’s anticipated testimony
is relevant to the issues herein. However, the trial judge’s testimony will not assist
the jury with resolving the issues. The trial judge has no personal knowledge
beyond granting the prosecutor’s motion for dismissal of the charges. Because the
24
Court will allow Plaintiff’s criminal defense attorney to testify, she can testify to
the dismissal of the criminal charges. As such, the only topic upon which the trial
judge can testify, namely the dismissal of the criminal charges, will be addressed
during defense counsel’s testimony rendering the trial judge’s testimony needlessly
cumulative. Accordingly, the Court will grant in part and deny in part Defendants’
Tenth Motion in Limine Regarding Proposed Testimony from the Criminal
Defense Attorney and the Judge from Plaintiff’s Criminal Proceedings. Plaintiff’s
defense attorney, Danielle Cadoret, may testify during Plaintiff’s case-in-chief.
11. Defendants’ Eleventh Motion in Limine Regarding Exhibits Not
Described with Particularity or not Disclosed During Discovery
As to Defendants’ Eleventh Motion in Limine, it appears the parties have
reached a resolution to the issue raised by Defendants. Defendants’ motion sought
the exclusion of so called “vague categories of documents” listed by Plaintiff in the
proposed Joint Final Pretrial Order. Specifically, Plaintiff listed the following: “1.
Videos and Photos,” “27. Evidence Tech records,” “28 Police Reports,” “30.
Investigator’s report,” and “39. Evidence technician records, reports and
photographs.”
Since the filing of the motion, Plaintiff has identified four dash-cam videos
labeled 7134834, 7134836, 7134837 and 7134858, as well as the evidence tech.,
evidence technician records and police reports Plaintiff intends to use during trial.
Accordingly, Defendants’ Motion in Limine Regarding Exhibits Not Described
25
with Particularity or Not Disclosed During Discovery is MOOT. Plaintiff shall be
required to amend the proposed Joint Final Pretrial Order to reflect the information
recently disclosed to Defendants. Plaintiff may not use any additional exhibits
other than those discussed in Defendants’ Reply brief or that were attachments to
Defendants’ brief.
12. Defendants’ Twelfth Motion in Limine Regarding Exhibits that
are Irrelevant, Cumulative or Contain Inadmissible Hearsay
Defendants’ last motion has been narrowed to seek exclusion of only
the following exhibits proposed by Plaintiff: 6, 9-11, 14, 16, 25, 37-38, and 40-41.
Exhibit 6 is a redacted version of Exhibit 38 and is a “Chief’s Duty Officer
Report for January 14, 2017.” Defendants believe this report contains out-of-court
statements of Captain Mark Thornton about a number of incidents, most of which
are irrelevant to the issues herein. However, the incident giving rise to this action
is referred to at the end of the report which states “shots fired, not at officer . . . .”
Plaintiff argues the report can come in under Rule 803(8) which is a hearsay
exception for “factual findings” in public records.
Defendants argue that the report is not based on personal knowledge because
Thornton did not arrive on the scene until after Plaintiff was transported to the
detention center. Plaintiff argues that Thornton’s factual findings are based on his
discussions with Defendants and his personal observations at the scene. However,
26
it is not evident from Thornton’s report who provided the information for his
report. As such, exhibit 38 will be excluded from trial.
Defendants argue exhibits 9, 10, 11, and 37 are emails exchanged between
Barbara Lanning, the prosecutor who dismissed the charges against Plaintiff, and
Plaintiff’s defense counsel, as well as are emails exchanged between Lanning and
Pachia Young, the warrants prosecutor. Defendants maintain they contain no
relevant information and violate the rule against hearsay. Plaintiff responds in
conclusory fashion, arguing that the emails are relevant and not cumulative
because “they relate to the very root of the matter in controversy.” ECF No. 89,
PageID.1443. Plaintiff intends on calling both Young and Lanning as witnesses to
testify about their records and their reasons for concluding whether to prosecute
the Plaintiff. Because Plaintiff intends on calling Young and Lanning, the
miniscule relevance these documents have to the issues herein render them
inappropriate for admission during trial. The emails may not come in as
substantive evidence.
They also argue Exhibit 25 is a bill from an attorney, which Plaintiff has
indicated he will not admit at trial. Plaintiff’s legal bills stemming from his
criminal prosecution go to the issue of damages. Should Plaintiff wish to introduce
this exhibit, it is not inadmissible under Rule 401 or 403.
27
Additionally, Defendants assert that Plaintiff’s proposed exhibit 40 broadly
describes “Witnesses Transcripts from Preliminary Examination, hearings and
depositions.” Neither side offers more than conclusory arguments in regard to this
exhibit. When a court is unable to determine whether or not certain evidence is
clearly inadmissible, evidentiary rulings should be deferred until trial so that
questions of foundation, relevancy and potential prejudice can be resolved in the
proper context. Ind. Ins. Co. v. General Elec. Co., 326 F. Supp.2d 844, 846 (N.D.
Ohio 2004). As such, this aspect of Defendants’ motion will be denied without
prejudice.3
Defendants further argue that Plaintiff’s proposed exhibits 14, 16, and 41 are
two documents prepared by Pachia Young, the prosecutor who signed off on the
warrant for Plaintiff’s arrest. Plaintiff has not advanced any exception to the rule
against hearsay. In any event, Defendants argue that if Young testifies, this
evidence is needlessly cumulative. Here, the Court finds these exhibits are
relevant. Moreover, it is not evident that these records will be needlessly
cumulative if Young testifies. Accordingly, this aspect of Defendants’ motion is
denied.
After briefing and the hearing on this matter concluded, Defendants submitted
supplemental authority arguing that Billingslea is entitled to testimonial immunity
with respect to his preliminary examination testimony. See Moldowan v. City of
Warren, 578 F.3d 351, 390 (6th Cir. 2009). At the time this issue arises during
trial, Plaintiff should be prepared to address this authority.
3
28
Based on the foregoing, the Court will grant in part and deny in part
Defendants’ Twelfth Motion in Limine Regarding Exhibits that are Irrelevant,
Cumulative or Contain Inadmissible Hearsay [#78].
IV.
CONCLUSION
Accordingly, for the reasons articulated above, Plaintiff’s Motion in Limine
to Preclude Defendants’ Proposed Exhibits [#61] is GRANTED IN PART.
Defendants’ proposed Exhibits BB, CC, and DD are inadmissible.
Defendants’ First Motion in Limine Regarding Subsequent Criminal
Allegations and the Duty Status of Defendants [#62] is GRANTED IN PART and
DENIED WITHOUT PREJUDICE IN PART.
Defendants’ Second Motion in Limine Regarding Past or Subsequent Officer
Misconduct, Disciplinary History, Misconduct Investigations, and Administrative,
Legislative, or Judicial Hearing Transcripts or Recordings and Findings or
Judgments [#63] is GRANTED.
Plaintiff’s Motion in Limine to Preclude Evidence of Dismissed/Settled
Claims [#64] is GRANTED.
Defendants’ Third Motion in Limine Regarding Unrelated Incidents
Involving Allegations of Police Misconduct, Consent Decree, or Police/Public
Relations or Perceptions Generally [#65] is GRANTED.
29
Plaintiff’s Motion in Limine to Set Procedure for Exercising Peremptory
Challenges [#66] is DENIED.
Plaintiff’s Motion to Compel Defendant to Produce Police Employees
During Plaintiff’s Case [#67] is GRANTED IN PART. Counsel for Defendants
shall provide contact information for Captain Mark Thornton to Plaintiff’s counsel
no later than March 3, 2020. The City Law Department shall accept service of
trial subpoenas for current Detroit Police Department employees.
Defendant’s Fourth Motion in Limine Regarding Evidence that Defendants
are Represented and Indemnified by the City of Detroit [#68] is GRANTED.
Plaintiff’s Motion in Limine to Preclude Experts and Witnesses Not
Disclosed During Discovery [#69] is GRANTED IN PART. Dr. Dudley is
precluded from testifying and his report, Defendants’ proposed exhibit EE, is
inadmissible.
Plaintiff’s Motion in Limine to Preclude Prejudicial And Irrelevant
Questions and Answers [#70] is GRANTED IN PART and DENIED IN PART.
Evidence of Plaintiff’s prior DUI, work-related evidence, evidence that he shot a
gun in a residential neighborhood on a prior occasion, his 17-year old concealed
weapons conviction, and the facts concerning the 2016 police encounter and
subsequent lawsuit are all inadmissible.
30
Defendants’ Fifth Motion in Limine Regarding Medical Records and Expert
Witness Testimony [#71] is DENIED IN PART. Dr. Abramsky shall be permitted
to testify.
Defendant’s Sixth Motion in Limine Regarding Punitive Damages [#72] is
DENIED.
Defendants’ Seventh Motion in Limine Regarding Testimony that is
Irrelevant and From Witnesses Not Disclosed During Discovery [#73] is
GRANTED IN PART and DENIED IN PART. Plaintiff may use 3 friends and/or
family witnesses to offer testimony on the issue of emotional condition.
Defendants’ Eighth Motion in Limine Regarding Irrelevant Evidence of
Employment [#74] is GRANTED. Keith Rudicelli is precluded from testifying.
Defendants’ Ninth Motion in Limine Regarding Police Department Policies
[#75] is DENIED WITHOUT PREJUDICE.
Defendants’ Tenth Motion in Limine Regarding Proposed Testimony from
the Criminal Defense Attorney and the Judge from Plaintiff’s Criminal
Proceedings [#76] is GRANTED IN PART and DENIED IN PART. Danielle
Cadoret may testify during Plaintiff’s case-in-chief.
Defendants’ Eleventh Motion in Limine Regarding Exhibits Not Described
with Particularity or Not Disclosed During Discovery [#77] is MOOT. Plaintiff
31
may not use any additional exhibits other than those discussed in Defendants’
Reply brief or that were included as attachments to Defendants’ brief.
Defendants’ Twelfth Motion in Limine Regarding Exhibits that are
Irrelevant, Cumulative or Contain Inadmissible Hearsay [#78] is GRANTED IN
PART and DENIED IN PART. Exhibits 14, 16, 25 and 41 are admissible.
Exhibits 6, 9-11, 37-38 are inadmissible. Exhibit 40 may be admissible upon
proper foundation.
Finally, the Court will require the parties to amend the proposed joint final
pretrial order to reflect compliance with the instant Order. The revised joint final
pretrial order shall be submitted to the Court no later than March 5, 2020 at noon.
SO ORDERED.
Dated: March 2, 2020
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 2, 2020, by electronic and/or ordinary mail.
/s/ Teresa McGovern
Case Manager
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?