Stojcevski et al v. Macomb, County of et al
Filing
262
OPINION and ORDER ADDRESSING DEFENDANTS' MOTIONS IN LIMINE denying 209 , 210 , 213 , 214 , 215 , 216 , 217 , 218 , 219 , 221 denying without prejudice 211 , 212 granting 220 and granting in part and denying in part 222 . Signed by District Judge Linda V. Parker. (AFla)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAFINKA STOJCEVSKI,
as Personal Representative
of the Estate of DAVID STOJCEVSKI, Deceased,
Plaintiff,
Case No. 15-cv-11019
Honorable Linda V. Parker
v.
COUNTY OF MACOMB, et al.,
Defendant.
_________________________________/
OPINION & ORDER ADDRESSING DEFENDANTS’ MOTIONS IN LIMINE
This lawsuit arises from the death of David Stojcevski while serving a thirtyday sentence in the Macomb County Jail. On March 18, 2015, the personal
representative of David’s estate (“Plaintiff”) filed a Complaint against Macomb
County and numerous Macomb County employees who worked at the jail
(collectively “Macomb County Defendants”), as well as several Correct Care
Solutions (“CCS”) employees who were assigned to provide health care to inmates at
the jail (collectively “CCS Defendants”). After this Court’s September 30, 2019
decision on several dispositive motions (ECF No. 186), what remains and is pending
for trial are Plaintiff’s 42 U.S.C. § 1983 claims asserting deliberate indifference in
violation of David’s rights under the Eighth and Fourteenth Amendments against
Defendants Vicky Bertram, Monica Cueny, Mical Bey-Shelley, Lawrence Sherman,
Chatalle Brock, CCS, Brian Avery, Paul Harrison, Morgan Cooney, John Talos,
Brian Pingilley, Steven Vaneenoo, Walter Oxley, and Macomb County.
Now pending before the Court are numerous motions in limine filed by either
the Macomb County Defendants or the CCS Defendants. The motions have been
fully briefed.
MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM ELICITING
EXPERT TESTIMONY FROM PLAINTIFF’S EXPERT ROBERT
GREIFINGER M.D. (ECF NO. 209)
The CCS Defendants seek to preclude Plaintiff from offering the expert
testimony of Robert Greifinger, M.D. The CCS Defendants concede that Dr.
Greifinger possesses the requisite qualifications and experience to opine on
healthcare policy and quality management. (ECF No. 209 at Pg ID 7602.)
Nevertheless, they assert that his opinions on medical care must be precluded for
three primary reasons.
First, the CCS Defendants argue that Dr. Greifinger is not qualified to render
expert opinions beyond correctional healthcare policy and quality management. The
CCS Defendants maintain that Dr. Greifinger is not qualified to testify to matters
involving actual medical treatment of patients because he has not provided medical
care since 1985 and, when he did, it was in the capacity as a pediatric physician.
According to the CCS Defendants, Dr. Greifinger’s training and experience with
benzodiazepine withdrawal is limited. Second, the CCS Defendants maintain that Dr.
2
Greifinger’s opinions must be precluded because they are not supported by a reliable
basis such as data, facts, or a scientific basis. Lastly, the CCS Defendants argue that
Dr. Greifinger’s opinions are inadmissible because they will not assist the trier of
fact.
Analysis
Pursuant to the Federal Rules of Evidence, relevant evidence is admissible but
may be excluded “if its probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed.
R. Evid. 403. Federal Rule of Evidence 702 specifically addresses the admissibility
of expert witness testimony:
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:
(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.
3
Fed. R. Evid. 702. The United States Supreme Court has instructed that Rule 702
requires district courts to ensure that expert testimony “rests on a reliable foundation
and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm. Inc., 509 U.S.
579, 597 (1993). The rule imparts a “gatekeeping” responsibility on district courts to
exclude unreliable and irrelevant expert testimony from trial. Hardyman v. Norfolk
& W. Ry. Co., 243 F.3d 255, 260 (6th Cir. 2001) (quoting Daubert, 509 U.S. at 597).
As Rule 702 provides, to be admissible, expert testimony must assist the trier
of fact in understanding the evidence or determining a material fact in question. Fed.
R. Evid. 702(a); see also Daubert, 509 U.S. at 592-93. Expert evidence is not helpful
and is improperly admitted when it addresses matters within the understanding or
common knowledge of the average juror or invades the province of the jury. See
United States v. Thomas, 74 F.3d 676, 684 n. 6 (6th Cir. 1996), abrogated on other
grounds by Morales v. Am. Honda Motor Co., 151 F.3d 500 (6th Cir. 1998). As
succinctly stated by the Sixth Circuit in Berry v. City of Detroit: “If everyone knows
[a particular fact], then we do not need an expert because the testimony will not
‘assist the trier of fact to understand the evidence or to determine a fact in issue.’” 25
F.3d 1342, 1350 (6th Cir. 1994) (quoting Fed. R. Evid. 702). Expert testimony based
on scientifically valid principles will satisfy Rule 702; whereas “an expert’s
subjective belief or unsupported speculation will not.” Smelser v. Norfolk S. Ry. Co.,
4
105 F.3d 299, 303 (6th Cir. 1997) (citation omitted), abrogated on other grounds by
Morales, 151 F.3d 500).
Federal Rule of Evidence 704 abolishes the “ultimate issue” rule which
precluded opinion testimony merely because it embraced an ultimate issue. Fed. R.
Evid. 704 (“An opinion is not objectionable just because it embraces an ultimate
issue.”). However, the Advisory Committee Notes specifically warn that the rule
“does not lower the bar so as to admit all opinions,” because “[u]nder Rule 701 and
702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion
of evidence which wastes time.” Id. Advisory Committee Notes. The notes go on:
“These provisions afford ample assurances against the admission of opinions which
would merely tell the jury what result to reach . . ..” Id. “The decision to admit or
exclude such evidence ultimately turns on whether it is helpful to the trier of fact.
Hefflin v. Steward Cnty., Tenn., 958 F.2d 709, 715 (6th Cir. 1992) (citing Torres v.
County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985)).
Dr. Greifinger has extensive experience in correctional health care, including
six years overseeing the administration of medical care for the entire New York
prison system and two years managing medical care at the New York City jail on
Rikers Island. (See ECF No. 232-2 at Pg ID 9661.) This experience has provided Dr.
Greifinger with specialized knowledge and expertise in the clinical care of inmates’
serious medical conditions, including nursing, mental health, and medical care. This
5
encompasses the care of inmates experiencing drug withdrawal, including
benzodiazepine withdrawal. Dr. Greifinger’s lack of recent experience treating
patients generally and lack of any experience treating patients experiencing
benzodiazepine withdrawal specifically are issues Defendants can raise on crossexamination to challenge his credibility. This lack of care goes to the weight, not the
admissibility, of Dr. Greifinger’s expert testimony.
Contrary to the CCS Defendants’ assertion, Dr. Greifinger’s expert report
reflects that his opinions are based, in part, on his review of the facts and data in this
matter. He reviewed Defendants’ policies, the deposition testimony, and the video
footage capturing David’s condition from when he entered a jail cell until his death.
Dr. Greifinger also reviewed records of David’s food and water intake and notes from
correction officers and nurses during the ten days David was incarcerated.
Dr. Greifinger’s expert opinion will aid the trier of fact to understand matters
not within the understanding or common knowledge of the average juror. The Court
recognizes the error that might occur if Dr. Greifinger uses the term “deliberate
indifference” when stating his opinion. See Woods v. Lecureux, 110 F.3d 1215,
1220-21 (6th Cir. 1997). However, as Plaintiff offers and Woods reflects, Dr.
Greifinger may still testify as to his expert opinion if he avoids using the term. See
id. (citing Hefflin, 958 F.2d at 715, where the Sixth Circuit found no reversible error
due to the expert’s use of the term because the expert “used ‘deliberately indifferent’
6
in the way an ordinary layman would to describe such conduct—to state his opinion
on the ultimate fact, not to state a legal conclusion.”)
For these reasons, the CCS Defendants’ Motion in Limine to Preclude Plaintiff
from Eliciting Expert Testimony from Plaintiff’s Expert Robert Greifinger, M.D.
(ECF No. 209) is DENIED. Dr. Greifinger may testify within the limits highlighted
here.
CCS DEFENDANTS’ MOTION IN LIMINE TO LIMIT PLAINTIFF’S
DAMAGES TO SURVIVAL DAMAGES UNDER 42 U.S.C. § 1983 (ECF NO.
210)
Plaintiff asserted four counts against Defendants in her initial Complaint, one
of which was a gross negligence claim that the Court subsequently reclassified as a
claim for medical malpractice. (ECF No. 42 at Pg ID 912.) The parties subsequently
stipulated to the dismissal of that claim. (ECF No. 56.) Plaintiff, however, again
included her gross negligence claim in a Second Amended Complaint filed on
September 20, 2017. (ECF No. 104 at Pg ID 2321-26.) Because Plaintiff never
sought leave to re-assert her state law claim in the amended pleading, the Court sua
sponte dismissed the claim without prejudice in its September 30, 2019 decision.
(ECF No. 186 at Pg ID 6944-56 n.1.) Thus, the only claims currently asserted in this
lawsuit are under 42 U.S.C. § 1983. For that reason, the CCS Defendants now move
to limit Plaintiff’s damages to survival damages under § 1983. (ECF No. 210.)
Without a pending state law claim, the CCS Defendants maintain that Plaintiff may
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not seek damages under Michigan’s wrongful death statute, Michigan Compiled
Laws § 600.2922.
Analysis
Section 1983 provides no guidance for how to evaluate damages. However, 42
U.S.C. § 1988 provides in relevant part that if § 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(a). Michigan law undoubtedly controls here and thus Michigan’s
civil damages laws apply to this action. See Frontier Ins. Co. v. Blaty, 454 F.3d 590,
598 (6th Cir. 2006).
Under Michigan’s wrongful death statute,
the 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). The Sixth Circuit Court of Appeals has held that
the statute does not provide a separate cause of action. See Blaty, 454 F.3d at 598600; Kane v. Rohrbacher, 83 F.3d 804, 805 (6th Cir. 1996). Instead, it provides
8
certain damages once a civil rights or tort violation is found which led to death.
Blaty, 454 F.3d at 598-604. Blaty recognized that a decedent’s estate may recover
the full extent of damages available under the statute in a § 1983 claim. Id. at 60304. As such, Plaintiff’s failure to plead a “wrongful death claim” does not preclude
her from recovering damages under the statute.1
Citing Claybrook v. Birchwell, 199 F.3d 350, 357 (6th Cir. 2000), and Jaco v.
Bloechle, 739 F.2d 239, 242 (6th Cir. 1984), the CCS Defendants argue that a § 1983
action for deprivation of civil rights is an action personal to the injured party and
therefore “no cause of action may lie under § 1983 for emotional distress, loss of a
loved one, or any other consequent collateral injuries allegedly suffered personally by
the victim’s family.” (ECF No. 210 at Pg ID 7747 (quoting Claybrook, 199 F.3d at
357).) In another case where the defendant similarly “interpret[ed]] Claybrook and
Jaco to mean that, because no independent cause of action may lie under § 1983 for
collateral injuries suffered by survivors, then survivors have no right to recover
damages[,]” the district court found that “th[e] analysis incorrectly confines
Claybrook, misapplies Jaco, and does not consider later Sixth Circuit precedent in
Blaty.” Warren v. Shilling, No. 2:12-cv-13, 2015 WL 1726787, at *3 (W.D. Mich.
Apr. 15, 2015). This Court agrees.
Plaintiff does in fact request damages under Michigan’s wrongful death statute in
her pleadings, however. (See, Am. Compl. ¶¶ 271, 272, 287, 293, ECF No. 104 at Pg
ID 2310-12, 2319-20, 2324-25.)
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1
Neither Claybrook nor Jaco involved Michigan’s wrongful death statute. Jaco
involved Ohio law which provided a cause of action only to the victim’s heirs but no
remedy for the personal injury suffered by the victim. Jaco, 739 F.2d at 242. As
such, the Sixth Circuit held that the statute was insufficient for purposes of §§ 1983
and 1988. See Blaty, 454 F.3d at 602. According to the Sixth Circuit, Michigan’s
statute, which in comparison provides recovery for a victim and the victim’s estates
and survivors, is not inconsistent with the Constitution and goals of § 1983 and
therefore should not be disturbed. Id. at 603.
Claybrook held only that § 1983 did not create an independent cause of action
for survivors. 199 F.3d at 357. The Tennessee statute at play in Claybrook did not
allow for the family of the victim to collect survivor’s losses. The Sixth Circuit’s
decision did not foreclose damages in a personal capacity claim under a statute, such
as Michigan’s, which provides for survivor’s losses. See Blaty, 454 F.3d at 601
(holding that Michigan’s wrongful death statute, which “authorizes an award of
damages for survivor’s losses of support, society, and companionship,” applies to
§ 1983 actions through § 1988).
For these reasons, the CCS Defendant’s Motion in Limine to Limit Plaintiff’s
Damages to Survival Damages under 42 U.S.C. § 1983 (ECF No. 210) is DENIED.
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CCS DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE ANY AND ALL
EVIDENCE SURROUNDING ANY PERSONNEL FILES (ECF NO. 211)
The CCS Defendants seek to preclude Plaintiff from offering any evidence
from their personnel files, maintaining that such evidence is inadmissible under
Federal Rule of Evidence 404(b) and more prejudicial than probative and therefore
also inadmissible under Federal Rule of Evidence 403. The CCS Defendants further
maintain that evidence in their personnel files may be precluded under Federal Rule
of Evidence 407 as evidence of subsequent remedial measures. Finally, the CCS
Defendants argue that the non-privileged privacy interest that is attached to the files
precludes their disclosure.
Analysis
The Court is unable to rule on the CCS Defendants’ sweeping request without
knowing what specific materials are contained in the personnel files and will be
offered at trial and under what specific circumstances the evidence will be offered.
Without this information, the Court cannot assess whether it is relevant, more
prejudicial than probative, or otherwise admissible or inadmissible under the Federal
Rules of Evidence. Such evidence might be admissible for impeachment purposes.
See Fed. R. Evid. 407. Further, under Rule 404(b), evidence of a defendant’s past
misconduct and/or discipline may be admissible to show inter alia knowledge,
absence of mistake, or lack of accident. Finally, to the extent private and sensitive
11
materials are contained within the personnel files, redactions can be made to prevent
their disclosure.
Whether Plaintiff may now seek those files through a trial subpoena—an issue
that the CCS Defendants raised only in their reply brief—is not currently ripe for the
Court’s review.
Accordingly, the Court is DENYING WITHOUT PREJUDICE the CCS
Defendants’ Motion in Limine to Preclude Any and All Evidence Surrounding Any
Personnel Files (ECF No. 211).
CCS DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE IMPROPER
CHARACTER EVIDENCE FOR DEFENDANT LAWRENCE SHERMAN,
M.D. (ECF NO. 212)
The CCS Defendants seek to preclude Plaintiff from offering into evidence any
of the investigations concerning the medical care Dr. Lawrence Sherman has
provided during his forty-one years practicing medicine, particularly a 1994
investigation by the New York State Board of Professional Conduct resulting in a
licensing restriction and a 2002 reprimand by the same body regarding the failure to
provide any treatment and care to an emergency room patient at Kenmore Mercy
Hospital. The CCS Defendants maintain that such character evidence is not
admissible under any exception set forth in Federal Rule of Evidence 404(b) and its
probative value is outweighed by its potential prejudicial effect.
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Analysis
Again, the Court is not equipped to make a broad sweeping ruling precluding
Plaintiff from introducing any evidence concerning Dr. Sherman’s past behavior
without knowing specifics about the evidence. The Court also cannot rule on
whether the 1994 and 2002 incidents are relevant without knowing the details
concerning those incidents and therefore whether they demonstrate—as Plaintiff’s
argue (see ECF No. 235 at Pg ID 10381-083)—Dr. Sherman’s knowledge that David
was at risk of a serious harm if not treated differently or Dr. Sherman’s motive and
intent in failing to treat him.
The Court, therefore, is DENYING WITHOUT PREJUDICE the CCS
Defendants’ Motion in Limine to Preclude Improper Character Evidence for
Defendant Lawrence Sherman, M.D. (ECF No. 212.)
CCS DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE THE USE OF
THE SURVEILLANCE VIDEOS AS FOUNDATION FOR MEDICAL
DIAGNOSIS/OPINION (ECF NO. 213)
On June 17, 2014, David was moved from the general housing unit in the
Macomb County Jail to its mental health unit. (ECF No. 186 at Pg ID 6953-54.)
Inmates in the mental health unit are continuously monitored via closed circuit
television by deputies. (Id. at Pg ID 6954.) The surveillance video was presented by
Plaintiff as evidence in response to Defendants’ previous summary judgment
motions. The videos appear to show David’s condition and activity between June 17
13
and his death on June 27. The medical examiner, Dr. Mary Pietrangelo, relied in part
on David’s appearance in the video recordings, including his display of “seizure like
activity”, when concluding that he suffered acute withdrawal from chronic
benzodiazepine, methadone, and opiate mediations.
The CCS Defendants now argue, however, that the video is inadmissible
because (1) it cannot be properly authenticated under Federal Rule of Evidence 901;
and (2) its probative value is substantially outweighed by the dangers of it misleading
and confusing the jury. The CCS Defendants maintain that the video is of such low
quality that there is a propensity for the recorded subjects to appear “jerky” or
“twitchy” while moving, which could be improperly confused with “seizure-like”
activity.
Within their briefs in support of this motion in limine, the CCS Defendants
also ask the Court to preclude Dr. Pietrangelo’s opinion that David suffered seizurelike activity and therefore died of withdrawal under Federal Rule of Evidence 702.
The CCS Defendants argue that Dr. Pietrangelo “lacks the requisite qualifications to
formulate a medical opinion based on a low-quality video, has no experience in
diagnosing seizure using video technology, and the relevant literature, case studies,
and expert community opine that Dr. Pietrangelo’s methodology in formulating her
opinion is unreliable.” (ECF No. 213 at Pg ID 7879.) According to the CCS
14
Defendants, there is no reliable evidence that David suffered seizures during his
incarceration.
If the Court allows Plaintiff to add an expert to authenticate the video, the CCS
Defendants request the same relief.
Plaintiff and the Macomb County Defendants have responded to the CCS
Defendants’ motion. The Macomb County Defendants take no position on the
admissibility of the video. (ECF No. 227 at Pg ID 9566.) They argue, however, that
Dr. Pietrangelo’s opinion should not be excluded under Rule 702 as her opinions are
not dependent upon the video surveillance footage but rather the medical and jail
records and her post-mortem autopsy examination. (ECF No. 227 at Pg ID 9566.)
The Macomb County Defendants maintain that there is testimony from corrections
officers and medical care providers that David exhibited seizure-like activity.
Plaintiff maintains that the video was only “a minor part” of Dr. Pietrangelo’s
conclusion regarding the cause of David’s death. (ECF No. 236 at Pg ID 10485.)
Like the Macomb County Defendants, Plaintiff indicates that there is other evidence
besides the video reflecting David’s seizure and/or seizure-like activity. (Id. at Pg ID
10486.) Any argument regarding the quality of the video, Plaintiff argues, goes to its
weight rather than its admissibility. (Id.) Plaintiff points out that the video recording
was produced by the Macomb County Defendants in response to preservation of
evidence letters from Plaintiff’s counsel. Plaintiff further points out that the CCS
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Defendants moved to submit a flash-drive containing the entire surveillance tape
during dispositive motion briefing.
Analysis
The Court first concludes that Dr. Pietrangelo should not be precluded from
testifying as to her medical opinion as it is based on her review of sufficient facts and
data independent of the contested video. After performing the autopsy of David, Dr.
Pietrangelo reviewed his medical records, hospital records, EMS records, jail records,
toxicology reports, his Automated Prescription Service Report, and the jail footage.
(ECF No. 213-3 at Pg ID 7948.) Further, Dr. Pietrangelo’s conclusion that David
suffered seizure-like activity is supported by testimony from other witnesses, as well
as the video.
As to the admissibility of the video itself, Sixth Circuit case law supports that
the quality of the video goes to its weight rather than its admissibility. See United
States v. Mize, 498 F. Supp. 3d 978, 986 (S.D. Ohio 2020) (holding video
surveillance footage admissible despite its inferior quality as that “merely goes to the
weight of the evidence, not admissibility”); Hopper v. Plummer, 887 F.3d 744 (6th
Cir. 2018). In Hopper, the court considered the recording from a jail cell overhead
video camera even though the “video lacked sound and the image stutter[ed] because
the camera recorded at a frame rate of only four frames per second.” Id. at 749 n.2.
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Lastly, the video can be properly authenticated. Federal Rule of Evidence 901
provides that the proponent of evidence “must produce evidence sufficient to support
a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). The
rule sets forth an unexhaustive list of how this requirement can be satisfied. Fed. R.
Evid. 901(b). The Macomb County Defendants provided Plaintiff with the video and
can testify to its authenticity. But the Court finds it hard to believe that the CCS
Defendants will in fact challenge its authenticity at trial given that they sought to
introduce it themselves during the summary judgment briefing. (See ECF No. 149.)
For these reasons, the Court is DENYING the CCS Defendants’ motion in
limine concerning the video (ECF No. 213).
CCS DEFENDANTS’ MOTIONS IN LIMINE TO PRECLUDE ANY AND
ALL EVIDENCE AND REFERENCE TO (A) AN FBI INVESTIGATION
SURROUNDING MR. STOJCEVSKI’S DEATH (ECF NO. 214) AND (B) THE
MACOMB COUNTY JAIL INTERNAL AFFAIRS AND SHERIFF
INVESTIGATION (ECF NO. 215)
After David’s passing, the Federal Bureau of Investigation (“FBI”) conducted
an investigation to determine whether any criminal or civil damages were warranted.
Several interviews were conducted as part of this investigation and the FBI issued a
report. Macomb County’s Office of Professional Standards and the Macomb County
Sheriff’s Office also conducted an internal investigation concerning David’s death.
The CCS Defendants seek to preclude Plaintiff from introducing any evidence related
to these investigations, including any mention that the investigations occurred. They
17
argue that the probative value of the evidence is substantially outweighed by unfair
prejudice and the risk of confusing the jury. They further argue that the evidence
constitutes inadmissible hearsay.2
Analysis
As an initial matter, Plaintiff does not oppose the redaction of limited portions
of the reports based on undue prejudice, potential jury confusion, or double hearsay
but notes that the wholesale exclusion of the reports is not warranted. For the reasons
discuss below, this Court agrees that the reports are not completely excludable and
that the decision of whether any portion should be excluded can be made only once
the contents are presented and their use explained.
Evidence that is relevant generally is admissible. See Fed. R. Evid. 402.
“Irrelevant evidence is not admissible.” Id. Evidence is relevant if it has “any
tendency to make the existence of any fact more or less probable than it would be
without the evidence; and . . . the fact is of consequence in determining the action.”
Fed. R. Evid. 401. Relevant evidence may be excluded “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,
The CCS Defendants do not maintain that the entire report from the County’s
investigation is inadmissible under the hearsay rules, although they make that
argument with regard to the FBI report. According to the CCS Defendants’ motion,
only portions of the county report are inadmissible as hearsay within hearsay. (See
ECF No. 215 at Pg ID 8810.)
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2
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Fed. R. Evid. 403.
The CCS Defendants maintain that the “marginal probative value” of the
County’s investigation report is outweighed by the danger that the jury will conclude
that, because an investigation was necessary, Defendants “possibly violate[d their]
professional conduct or committed acts that fall just short of professional
misconduct.” (ECF No. 215 at Pg ID 8823-24.) The CCS Defendants further argue
that introduction of the report will confuse the jury and cause delay as the jurors are
distracted by the report’s analysis of whether Defendants committed professional
misconduct, which is not relevant to the issues the jury must decide in a deliberate
indifference case. (Id.) The CCS Defendants maintain that the introduction of the
FBI report is likely to cause unfair prejudice because, given the prestige and authority
of the FBI, its decision to investigate could lead jurors to conclude that Defendants
must have done something wrong.
First, the Court is unable to balance the relevancy of the reports against the
CCS Defendants’ asserted prejudice without knowing the reports’ contents. Second,
the potential prejudice claimed by the CCS Defendants can be avoided through
proper jury instructions. Jurors are presumed to understand and follow their
instructions. See Penry v. Johnson, 532 U.S. 782, 799 (2001) (citing Richardson v.
Marsh, 481 U.S. 200, 211 (1987))
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Turning to the CCS Defendants’ hearsay arguments, Federal Rule of Evidence
excludes”[a] record or statement of a public office” from the rule against hearsay,
regardless of whether the declarant is available as a witness, if:
(A) [the record or statement] sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not
including, in a criminal case, a matter observed by law
enforcement personnel; or
(iii) in a civil case or against the government in a criminal case,
factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or
other circumstances indicate a lack of trust-worthiness.
Fed. R. Evid. 803(8). The Advisory Committee Notes to Rule 803(8) set forth four
factors to consider when assessing a report’s trust worthiness: “(1) the timeliness of
the investigation, (2) the special skill or experience of the investigators, (3) whether
the agency held a hearing, and (4) possible motivational problems. Bank of
Lexington & Trust Co. v. Vining-Sparks Sec., Inc., 959 F.2d 606, 616 (6th Cir. 1992)
(citation omitted).
The CCS Defendants do not identify any factors that they believe render the
Macomb County investigative report untrustworthy. They do argue that the FBI
report is not trustworthy due to the lack of a hearing, problems with motivation, and
the length of time between David’s death and the investigation. They maintain that
20
there was a year and almost four-month gap between David’s death and the FBI’s
commencement of its investigation. The CCS Defendants argue that “[k]ey witnesses
could have misremembered significant portions of the events in question.” (ECF No.
214 at Pg ID 8796.) Moreover, because the investigation began after this lawsuit was
filed, the CCS Defendants argue that witnesses may have been untruthful as they
have something to gain from the lawsuit.
The CCS Defendants fail to elaborate on how the lack of a hearing has
impacted the trustworthiness of the FBI report. As to the gap between David’s death
and the investigation, it is pure speculation that any witness’s memory has been
impacted by any delay, as is the CCS Defendants’ assertion that witnesses may have
had motivations to be untruthful when interviewed by the FBI due to the pending
lawsuit. The same arguments could be made with respect to the witnesses’ testimony
during depositions and at trial in this lawsuit. As such, the CCS Defendants fail to
demonstrate that the FBI report lacks trustworthiness.
For these reasons, the Court is DENYING the CCS Defendants’ motions in
limine to preclude Plaintiff from introducing the FBI and Macomb County reports in
their entirety (ECF Nos. 214, 215). Before trial, the parties should confer to discuss
the portions of either report that will be offered as evidence—as they should with any
evidence—and attempt to reach an agreement as to any necessary redactions or
21
double hearsay issues. Any specific objections to what will be offered may be
presented thereafter to the Court.
THE MACOMB COUNTY DEFENDANTS’ MOTION IN LIMINE TO
PRECLUDE INTERNAL POLICIES/PROCEDURES AND ANY
ALLEGATION THAT BREACH OF POLICIES/PROCEDURES IS A
CONSTITUTIONAL VIOLATION (ECF NO. 217)3
The Macomb County Defendants seek to preclude Plaintiff from introducing
evidence of the county’s policies and procedures because a violation of those policies
or procedures does not amount to a constitutional violation.4 See, e.g., Smith v.
Freland, 954 F.2d 343 (6th Cir. 1992) (explaining that a defendant’s violation of a
municipal policy does not demonstrate a constitutional violation as those policies do
not establish the standard required by the Constitution and “[a] city can certainly
choose to hold its officers to a higher standard than that required by the Constitution
without being subject to increased liability under § 1983”). The Macomb County
Defendants argue that introducing the county’s policies and procedures into evidence
therefore will likely confuse the jury as to the applicable legal standard.
The Macomb County Defendants’ motion in limine filed as docket entry 216 is
discussed infra as it is related to a later-filed motion.
4
Citing to the deposition transcripts of two of Plaintiff’s experts, Margo Frasier and
Debra Graham, the Macomb County Defendants assert that “all of Plaintiff’s experts
admit that [the county’s] policies and procedures are constitutionally sound.” (ECF
No. 217 at Pg ID 9019.) Plaintiff responds that this is not true, pointing out that she
has three additional experts and that Frasier’s and Graham’s deposition transcripts
must be read as a whole to understand their opinions. (ECF No. 240 at Pg ID 10786.)
22
3
Analysis
The County’s policies and procedures are relevant, particularly to Plaintiff’s
Monell claim, and proper instructions can be used to prevent the trier-of-fact from
confusing those policies and procedures with the applicable legal standard.
Plaintiff’s theory in support of her Monell claim is that jail employees were not
sufficiently trained with respect to those policies and procedures and/or properly
supervised with regard to their execution of them. (See, e.g., ECF No. 186 at Pg ID
6989.) Evidence of what these policies and procedures state therefore is relevant.
In all but one of the cases cited by the Macomb County Defendants in support
of their motion (see ECF No. 217 at Pg ID 9028, 9034), the courts did not preclude
the introduction of a municipality’s policies or procedures for this purpose. These
decisions stand simply for the well-established proposition that “the violation of
[municipal] policy [or procedure] is not in and of itself a constitutional violation
under 42 U.S.C. § 1983.” Bradley v. City of Ferndale, 148 F. App’x 499, 508 (6th
Cir. 2005) (citing Freland, 954 F.2d at 347). The one exception is Edgerson v.
Matatall, No. 10-14954, 2014 WL 172258 (E.D. Mich. Jan. 15, 2014). In that case,
however, there was no Monell claim at issue and for that reason the court found the
city’s policies and procedures not relevant. See id. at *1, 10.
23
For these reasons, the Court is DENYING the Macomb County Defendant’s
Motion in Limine to Preclude Internal Policies/Procedures and Any Allegation that
Breach of Policies/Procedures is a Constitutional Violation (ECF No. 217).
MACOMB COUNTY DEFENDANTS’ MOTION TO STRIKE PLAINTIFF
EXPERT MARGO FRASIER’S OPINIONS AND PRECLUDE PLAINTIFF’S
EXPERT FROM TESTIFYING AT TRIAL (ECF NO. 218)
This motion concerns Plaintiff’s expert witness, Margo Frasier, who is
identified as a “criminal justice consultant and expert.” (ECF No. 218-2 at Pg ID
9347.) The Macomb County Defendants concede that Frasier’s testimony is relevant
and that she has reliable experience. (ECF No. 218 at Pg ID 9333.) Nevertheless,
they seek to preclude Frasier from testifying, arguing that her proposed opinion
provides only improper legal conclusions. As such, the Macomb County Defendants
contend that her testimony will not assist the jury “to understand the evidence or to
determine a fact in issue” and therefore is not admissible under Federal Rule of
Evidence 702. The Macomb County Defendants seem to argue that, alternatively,
Frasier’s testimony must be limited. (See id. at Pg ID 9341.)
Analysis
The Sixth Circuit has explained that “although an expert’s opinion may
‘embrace an ultimate issue to be decided by the trier of fact,’ Fed. R. Evid. 704(a),
the issue embraced must be a factual one.” Berry v. City of Detroit, 25 F.3d 1342,
1353 (1994). An expert “may [not] opine on the ultimate issue of liability.” Id.
24
Thus, the court explained further, an expert can testify that a police department is
“lax” and that certain consequences resulted from that laxity but not that the
department’s lax policies indicated that it “was deliberately indifferent to the welfare
of its citizens.” Id. (emphasis in original). The Sixth Circuit provided an additional
example: “We would not allow a fingerprint expert in a criminal case to opine that a
defendant was guilty (a legal conclusion), even though we would allow him to opine
that the defendant’s fingerprint was the only one on the murder weapon (a fact).” Id.
The responsibility for defining legal terms, such as “deliberate indifference,” falls on
the court, not testifying witnesses. Id.
Therefore, to the extent Frasier avoids expressing legal conclusions, she should
not be precluded from presenting her expert opinions. In fact, not every opinion in
her report is stated as a legal conclusion. (See ECF No. 281-2.) Based on her
experience in law enforcement and corrections, Frasier could provide testimony, for
example, on the proper standards regarding medical care, mental health care, and
nutrition in a prison setting. She could opine also on the sufficiency of the policies
followed by the Macomb County Jail and CCS, whether Defendants should have
been aware of David’s serious medical condition, and what a reasonable corrections
officer or prison health care worker would have done under the circumstances.
Accordingly, the Court is DENYING the Macomb County Defendants’
Motion to Strike Plaintiff Expert Margo Frasier’s Opinions and Preclude Plaintiff’s
25
Expert from Testifying at Trial (ECF No. 218). However, Frasier may not present
any opinion that states a legal conclusion.
MACOMB COUNTY DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE
MENTION OF VLADIMIR STOJCEVSKI, JENNIFER MYERS, OR ANY
OTHER UNRELATED MATTER (ECF NO. 219)
The Macomb County Defendants seek to preclude Plaintiffs from introducing
evidence related to the incarceration of other individuals in the Macomb County Jail,
such as Vladimir Stojcevski (David’s brother) and Jennifer Myers, as well as those
individual’s claims and lawsuits against the County. The Macomb County
Defendants argue that such evidence “would . . . inject mini trials within this larger
trial, would not amount to any relevant or probative evidence, and would only
prejudice a jury.” (ECF No. 219 at Pg ID 9497.) The CCS Defendants concur in the
motion. (See ECF No. 228.)
Plaintiff responds, indicating that she does not intend to mention Myers in this
litigation, at all, or Vladimir’s dismissed litigation or facts related to his separate
deliberate indifference claims. Plaintiff concedes that “an evidentiary preclusion that
prohibits any reference to [] Vladimir Stojcevski’s or Jennifer Myers’ lawsuit is
appropriate.” (ECF No. 242 at Pg ID 10927.) Plaintiff therefore agrees to a
reasonable limitation on Vladimir’s testimony related to his litigation and allegations
made therein. (ECF No. 242 at Pg ID 10925-96.) Plaintiff does, however, intend to
26
call Vladimir as a witness and argues that his testimony cannot be rejected wholesale
as irrelevant or unduly prejudicial.5
Contrary to the Macomb County Defendants’ assertion in reply, the Court does
not believe that the subjects of Vladimir’s proposed testimony relate to his deliberate
indifference claims against Defendants. The Court also does not agree that all
evidence related to Vladimir’s incarceration in 2014—which coincided in part with
David’s incarceration—is irrelevant and/or unfairly prejudicial. For example,
Vladimir’s testimony that he was incarcerated at the Macomb County Jail with his
brother and interacted with a corrections officer who commented on David’s
condition may be relevant and is not unfairly prejudicial. The same is true with
respect to a nickname Vladimir knew the officers used to refer to David as it might
5
Plaintiff describes some areas she plans to explore with Vladimir, which relate to (i)
his relationship with his deceased brother before their incarceration and (ii)
“information related to his own and his brother’s incarceration. (ECF No. 242 at Pg
ID 10915.) As to the former category, Plaintiff intends to ask Vladimir about “his
life-long friendship with his brother . . . and how David’s tragic death impacted him”
(id. at Pg ID 10920.) As to the latter category, Plaintiff refers to: (i) the close
proximity between David’s and Vladimir’s cells when they were housed at the jail;
(ii) Vladimir’s release to the hospital because he was suffering from a serious
medical condition; (iii) “degrading and disdainful ‘nicknames’” the Macomb County
Defendants gave to Vladimir (“Stinky” because he suffered from incontinence) and
David (“Blinky” because of his rapid eye movements); and (iv) comments to
Vladimir by Defendant Paul Harris, a Macomb County correctional officer, which
Plaintiff asserts provide evidence of Harris’ knowledge of David’s serious medical
condition. Plaintiff indicates that Vladimir should be able to testify that he was
incarcerated at the jail at the same time as his brother and share his observations of
David during that period.
27
reflect their knowledge of behavior relevant to his medical condition. On the other
hand, what the officers called Vladimir or the fact that he was transported to the
hospital for medical treatment may not be. An individual determination must be
made for each specific subject area Plaintiff ultimately decides to explore with
Vladimir at trial.
As such, the Court declines to issue a broad ruling precluding Plaintiff from
mentioning Vladimir, offering him as a witness at trial, or asking him about matters
related to his incarceration. The Macomb County Defendants’ request for an order
precluding Plaintiff from mentioning lawsuits and deliberate indifference claims
brought by other Macomb County Jail inmates is moot. To the extent the Macomb
County Defendants seek to preclude Plaintiff from making any mention of Vladimir
Stojcevski and/or his incarceration at the jail in 2014, the Court is DENYING the
motion.
MACOMB COUNTY DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE
EVIDENCE THAT WITNESSES WERE PREVIOUSLY NAMED AS
DEFENDANTS (ECF NO. 220)
When Plaintiff filed her pleadings in this case, she named a number of
individuals as Defendants, several of whom have been since dismissed. If these
individuals are called as witnesses at trial, the Macomb County Defendants ask the
Court to preclude Plaintiff from referring to them as Defendants or indicating that
they previously were parties to the case. The Macomb County Defendants argue that
28
the individuals’ prior status as parties in this matter is not relevant and would be
unfairly prejudicial if shared with the jury.
In response, Plaintiff agrees not to identify any prior Defendant as a Defendant
at trial, except Macomb County Sheriff Anthony Wickersham, Macomb County Jail
Administrator Michelle Sanborn, and CCS Mental Health Director Natalie Pacitto.
(See ECF No. 243 at Pg ID 10971-72.) Wickersham, Sanborn, and Pacitto were sued
in part in their official capacities in conjunction with Plaintiff’s municipal liability
claim under Monell v. New York City Department of Social Services, 436 U.S. 658,
692 (1978). As Plaintiff points out, the Court did not dismiss these individuals in
their official capacities because there was insufficient evidence to support her Monell
claim. Rather, they were dismissed because Plaintiff’s claims against them in that
capacity was duplicative of her claims against the County. (ECF No. 186 at Pg ID
6985-86, 6999-7000.)
Analysis
Evidence that Wickersham, Sanborn, or Pacitto were initially named as
defendants in this lawsuit is not likely “to make a fact more or less probable than it
would be without the evidence” and that “fact is of [no] consequence in determining
the action.” See Fed. R. Evid. 404. Plaintiff’s Monell claim is dependent in part on
their roles as officials or supervisors, not as defendants in this action. Any possible
relevance to their previous status as defendants would be outweighed by the danger
29
of unfair prejudice to the remaining defendants. For example, the jury could
conclude that these individuals are less credible simply because of their prior status
as defendants, relatedly that they have an interest or motivation to be untruthful, or
that if these individuals were dismissed as parties, the individuals who were not must
be liable.
For these reasons, the Court is GRANTING the Macomb County Defendants’
Motion in Limine to Preclude Evidence that Witnesses were Previously Named as
Defendants (ECF No. 250).
MACOMB COUNTY DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE
EVIDENCE OF THE UNKNOWN WEIGHT OF DAVID STOJCEVSKI AT
THE TIME OF BOOKING ON JUNE 11, 2014 OR ANY WEIGHT LOSS
WHILE AT MACOMB COUNTY JAIL (ECF NO. 221)
As this Court set forth in its September 30, 2019 decision, David’s weight was
reported in Macomb County Jail records on the several occasions when he was
incarcerated there. (See ECF No. 186 at Pg ID 6949.) According to the jail’s
records, David’s weight between September 2006 and August 2009 fluctuated
between 175 and 190 pounds. (Id. (citing ECF No. 158-9 at Pg ID 184-207).) When
David arrived at the jail on June 11, 2014, his weight was recorded to be 195 pounds.
(Id. at Pg ID 6948 (citing ECF No. 148-2 at Pg ID 362-63).) When he died sixteen
days later, he weighed 151 pounds. (Id. at Pg ID 6966 (citing ECF No. 148-12).)
Defendants have argued that David’s weight was auto populated from his prior
incarceration records when he began serving his June 2014 sentence. (See ECF No.
30
148-13 at Pg ID 4341.) The Macomb County Defendants now offer the affidavit
from a current county employee to support this assertion. (Sopfe Aff. ¶ 5, ECF No.
221-2 at Pg ID 9538-39.) According to Sopfe, David’s weight was recorded as 190
pounds on September 1, 2006, the first time he was booked into the jail, and this
“weight was not updated at each of his subsequent eight bookings . . ., including his
June 11, 2014 booking.” (Id.) Sopfe continues: “The data entered in the weight
field on September 1, 2006 was automatically populated to read ‘190’ for every
booking thereafter.” (Id.)
The Macomb County Defendants therefore argue in their present motion that
Plaintiff should be precluded from offering at trial any evidence of a contrary weight
for David at the time of his June 2014 booking and, as a result, any evidence as to the
amount of weight he lost between that date and his death. The Macomb County
Defendants maintain that the evidence is not reliable and therefore should be
precluded under Federal Rule of Evidence 403. The CCS Defendants join in the
motion. (See ECF No. 229.)
Analysis
One clear problem with the Macomb County Defendants’ argument is that
David’s weight was not recorded as 190 pounds when he was booked on June 11,
2014. As set forth above, the jail records from that date record his weight as being
195 pounds. This discredits Sopfe’s assertion.
31
In any event, there appears to be a genuine issue of material fact regarding
David’s weight on June 11, 2014. Plaintiff may present the intake record to convince
the trier of fact that he weighed 195 pounds. Defendants can present argument for
why this number is not accurate. It is for the trier of fact to decide which number is
reliable and from there to decide how much weight David in fact lost between his
intake and death.
For these reasons, the Macomb County Defendants’ motion in limine
concerning David’s weight (ECF No. 221) is DENIED.
THE MACOMB COUNTY DEFENDANTS’ MOTION IN LIMINE TO
STRIKE PLAINTIFF EXPERT DEBRA GRAHAM’S OPINION AND
PRECLUDE PLAINTIFF’S EXPERT FROM TESTIFYING AT TRIAL (ECF
NO. 216)
Plaintiff has retained registered dietician and licensed dietician and nutritionist
Debra Graham to testify as an expert at trial. The Macomb County Defendants ask
the Court to strike Graham’s testimony because (1) her report fails to list other cases
where she testified, publications she has authored, or her fee schedule, as required
under Federal Rule of Civil Procedure 26(2)(B); and (2) her opinions are based on
assertedly unreliable information concerning David’s weight when he was booked
into the jail. The Macomb County Defendants argue that because Graham’s opinions
concerning David’s nutritional needs are based on that weight, they too are
unreliable.
32
As to the first, Graham testified during her deposition that, as of that date, she
had never been qualified by a court as an expert witness in the area of dietetics. (ECF
No. 239-3 at Pg ID 10760.) Therefore, there were no cases to list in her report.
Plaintiff represents that as of the date of her report, Graham also had not authored any
publications to list and did not have a fee schedule. (ECF No. 239 at Pg ID 10711.)
These asserted “omissions” from her report therefore are not a basis to preclude her
from testifying.
Regarding the second, as discussed above, there is a factual dispute that the
trier of fact must resolve concerning David’s weight at intake on June 11, 2014.
Graham obviously has no first-hand knowledge regarding David’s weight at the time
and must rely on the record evidence, including the jail’s records which recorded
David’s weight as 195 pounds on that date, not the 190 pounds the Macomb County
Defendants maintain was automatically populated with each booking. The Macomb
County Defendants certainly can argue to the jury that David in fact weighed
something other than 195 pounds on June 11, and that therefore the jury should reject
Graham’s opinions to the extent dependent on the latter weight. However, this
factual dispute is not a basis to preclude her from testifying.
Moreover, a review of Graham’s report reflects that many of her opinions are
not dependent on David’s weight and do not consist of her only summarizing his food
and water intake as observed on the video recordings.
33
For these reasons, the Macomb County Defendants’ Motion to Strike
Plaintiff’s Expert Debra Graham’s Opinion and Preclude Plaintiff’s Expert from
Testifying at Trial (ECF No. 216) is DENIED.
MACOMB COUNTY DEFENDANTS’ MOTION IN SUPPORT OF
APPORTIONMENT OF LIABILITY DAMAGES (ECF NO. 222)
The Macomb County Defendants ask the Court to rule that any damages
assessed against them must be based on each Defendant’s actions and the harm
caused by those actions. Similarly, the Macomb County Defendants maintain that
punitive damages may be awarded only upon separate determinations of how each
Defendant acted.
Analysis
As the Macomb County Defendants correctly point out, § 1983 liability must
be premised on the individual’s personal engagement in unconstitutional conduct.
Hayes v. Jefferson Cnty., 668 F.2d 869, 872 (6th Cir. 1982). Nevertheless, the Sixth
Circuit has held that where the plaintiff in a § 1983 action has suffered an indivisible
injury, joint and several liability is proper and apportionment of damages is improper.
Weeks v. Chaboudy, 984 F.2d 185, 188-89 (6th Cir. 1993) (citing cases); see also
Northington v. Marin, 102 F.3d 1564, 1569 (10th Cir. 1996) (explaining that
“[m]ultiple tortfeasors who concurrently cause an indivisible injury are jointly and
severally liable; each can be held liable for the entire injury.”); Watts v. Laurent, 774
F.2d 168, 179 (7th Cir. 1985) (concluding that a former inmate at a youth center may
34
recover the entire judgment from any of the defendants found liable). In comparison,
if “the injury is divisible and causation of each party can be separately assigned to
each tortfeasor” joint liability is not proper. Nichols v. Knox Cnty., Tenn., 718 F.
App’x 338, 342 (6th Cir. 2017) (quoting Weeks, 984 F.2d at 189).
Plaintiff alleges that Defendants’ combined deliberate indifference caused
David’s death—a single, indivisible injury. If the trier of fact finds that any
Defendant, through that Defendant’s actions, violated David’s constitutional rights,
the individual will be jointly and severally liable for any injuries awarded.
Punitive damages, in comparison, are assessed separately against each
Defendant. Minix v. Canarecci, 597 F.3d 824, 830 (7th Cir. 2010) (citing Bosco v.
Serhant, 836 F.2d 271, 281 (7th Cir. 1987)); Smith v. Lightning Bolt Prods., Inc., 861
F.2d 363, 374 (2d Cir. 1988) (explaining the strong policy arguments against
permitting the entry of joint and several liability on punitive damages, including that
such damages are “intended in part as a penalty against a defendant who has
exhibited a high degree of moral culpability and as a deterrence against further
similar conduct by that defendant. Those interests are disserved if the judgment gives
such a defendant an opportunity to escape payment of the penalty assessed.”).
For these reasons, the Macomb County Defendants’ Motion in Support of
Apportionment of Liability and Damages (ECF No. 222) is GRANTED IN PART
35
AND DENIED IN PART. Defendants may be held jointly and severally liable for
all damages, except punitive damages.
CONCLUSION
In summary, for the reasons set forth above, the Court is DENYING the
motions in limine to: (i) preclude Plaintiff from eliciting expert testimony from
Plaintiff’s expert Robert Greifinger (ECF No. 209); (ii) limit Plaintiff’s damages to
survival damages (ECF No. 210); (iii) preclude the use of the surveillance video
(ECF No. 213); (iv) preclude the introduction of the FBI and Macomb County reports
(ECF Nos. 214, 215); (v) strike Graham’s opinion and testimony (ECF No. 216); (vi)
preclude evidence of Macomb County policies and procedures (ECF No. 217); (vii)
exclude Frasier’s opinions and testimony (ECF No. 218)6; (viii) bar references to
Vladimir Stojcevski or his testimony concerning his 2014 detention at the Macomb
County Jail (ECF No. 219)7; and (ix) preclude evidence of David’s weight at booking
(ECF No. 221).
The Court is DENYING WITHOUT PREJUDICE the motions in limine
regarding (i) personnel files (ECF No. 211) and (ii) character evidence related to
Lawrence Sherman (ECF No. 212).
6
This ruling is subject to the limitation set forth supra
The request to preclude evidence regarding other Macomb County Jail inmates and
any other inmate’s deliberate indifference claim aside from David’s is moot.
36
7
The Court is GRANTING the motion to preclude Plaintiff from referring to
individuals previously named as defendants as defendants or indicating that they
were parties to the case previously (ECF No. 220). It is GRANTING IN PART
AND DENYING IN PART the motion to apportion damages (ECF No. 222).
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 27, 2021
37
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