Dean v. Gage County, Nebraska, et al

Filing 309

RULINGS ON MOTIONS IN LIMINE - Denying 250 , except to the extent stated in the pretrial conference order 289 "Counsel shall not suggest to the jury that it is the jury's responsibility to determine guilt or innocence in this matter.&quo t;; sustaining 252 as to all Opinions except for Opinion 1 and to that extent only the motion is denied; sustaining 256 ; denying without prejudice 258 ; denying without prejudice 261 ; denying 265 , but without prejudice to relevancy objection s at trial. If the documents must be reviewed, they should be filed as restricted access documents as provided in Judge Zwart's order 199 ; denying 267 , except to the extent stated in the pretrial conference order 289 : "Counsel shall not suggest to the jury that it is the jury's responsibility to determine guilt or innocence in this matter."; denying 269 as to Rule 26 objection, sustained as to Soucie's opinions because they are unhelpful legal conclusions by a f ormer lawyer for a party opponent, sustained to any opinions Corey O'Brien proposes to offer as to whether the defendants were reckless or assembled false evidence against the plaintiffs because those opinions are legal conclusions and unhelpful , otherwise denied; granting 272 Motion to Extend; granting 307 motion to file a supplemental index; denying 273 ; and denying 276 in case 4:09-cv-03144-RGK-CRZ. Member Cases: 4:09-cv-03144-RGK-CRZ et al. Ordered by Senior Judge Richard G. Kopf. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES L. DEAN,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
LOIS P. WHITE, as Personal
Representative of the Estate of
Joseph White, deceased,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
KATHLEEN A. GONZALEZ,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
THOMAS W. WINSLOW,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
ADA JOANN TAYLOR,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
DEBRA SHELDEN,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.

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4:09CV3144

4:09CV3145

4:09CV3146

4:09CV3147

4:09CV3148

4:11CV3099

RULINGS ON MOTIONS IN LIMINE

There are numerous motions in limine pending before me.
IT IS ORDERED that:
Plaintiffs’ motions:
250

prohibiting Defendants, their counsel or their witnesses from arguing or
suggesting that the Plaintiffs (or any one of them) were guilty of participation
in the rape and murder of Helen Wilson.
Plaintiffs argue the evidence is not relevant or should be excluded under Rule
403.
Defendants state they “have no intention of asserting or arguing that the
Plaintiffs were actually guilty ....”
Ruling:

252

Denied, except to the extent stated in the pretrial conference
order (filing 289): “Counsel shall not suggest to the jury that
it is the jury’s responsibility to determine guilt or innocence in
this matter.”

excluding the testimony of defense expert Ron Martinelli [and his
subcontractor, Robert Prevot], ... as follows:
1.

Martinelli’s opinions relative to whether Defendants had probable cause
to arrest Plaintiffs; and as to whether Defendants engaged in
constitutionally-violative and/or conscience-shocking conduct ...
According to the expert witness report (filing 254-2), Martinelli will
offer 4 main opinions:

Opinion No. 1 – The defendant investigating officers, ... The Gage
County Sheriff’s Office, and the Gage County Attorney’s Office
utilized objectively reasonable and generally recognized law
enforcement practices during the Helen Wilson sexual assault and
homicide investigation.
Opinion No. 2 – The investigating officers and agencies involved
in the Helen Wilson homicide investigation did not act with
reckless disregard or with deliberate indifference to the civil rights
of the plaintiffs.
Opinion No. 3 - The aforementioned investigating officers and
agencies involved in the Helen Wilson homicide investigation did
not did not [sic] conduct their investigation in a manner that
“shocks the conscience” of the Court.
Opinion No. 4 – Overall actions of investigators and prosecutors
in the Wilson homicide investigation were objectively reasonable,
appropriate and not in violations of the plaintiffs’ constitutional
rights.
Defendants’ response seems to indicate that their experts will only testify
about whether their conduct was appropriate under accepted standards,
and not whether they violated Plaintiffs’ rights.
2.

Martinelli’s opinions that the pathologist who performed the autopsy on
Mrs. Wilson incorrectly identified the mechanism of Mrs. Wilson’s death
...

3

Martinelli so opined during his deposition. Plaintiffs object that a
criminologist does not have the credentials to contradict the pathologist’s
findings.
Defendants have not responded to this objection.
3.

Martinelli[’s] ... interpretation [of or justification for] ... the thought
processes of parties and witnesses underlying their conduct....
Defendants have not responded to this objection.

[4].

Any opinions ... [not] limited to those based on his review of evidence in
this case as of the date of his discovery deposition.
Defendants have not responded to this objection.

Ruling:

Sustained as to all Opinions except for Opinion 1 and to that
extent only the motion is denied.

Federal Rule of Evidence 702 permits a qualified expert to give opinion
testimony if the expert’s specialized knowledge would allow the jury to
better understand the evidence or decide a fact in issue. United States v.
Arenal, 768 F.2d 263, 269 (8th Cir.1985). “The touchstone for the
admissibility of expert testimony is whether it will assist or be helpful to
the trier of fact.” [McKnight ex rel. Ludwig v. Johnson Controls, Inc., 36
F.3d 1396, 1408 (8th Cir.1994).] Rule 704(a) provides that expert
evidence is not inadmissible because it embraces an ultimate issue to be
decided by the jury. If the subject matter is within the jury’s knowledge
or experience, however, the expert testimony remains subject to
exclusion “because the testimony does not then meet the helpfulness
criterion of Rule 702.” Arenal, 768 F.2d at 269. Opinions that “merely
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tell the jury what result to reach” are not admissible. Fed.R.Evid. 704
advisory committee’s note.
Lee v. Andersen, 616 F.3d 803, 808-09 (8th Cir. 2010) (expert’s conclusion that
surveillance video showed suspect was not carrying a gun was properly
excluded in trial involving § 1983 excessive force claim); see also Schmidt v.
City of Bella Villa, 557 F.3d 564, 570 (8th Cir. 2009) (expert’s opinions about
reasonableness of evidence collection and strip search procedures in § 1983
action were inadmissible legal conclusions; Peterson v. City of Plymouth, 60
F.3d 469, 475 (8th Cir.1995) (expert testimony on reasonableness of police
behavior in light of Fourth Amendment standards is statement of legal
conclusions and not admissible).
256

prohibiting Defendants, their counsel or their witnesses from any mention of
claims made or payments received by any Plaintiff pursuant to the Nebraska
Wrongful Conviction Compensation Act.
The State of Nebraska has paid settlements to Winslow ($180,000), Gonzalez
($350,000), and White ($500,000). Following trial, it has also been ordered to
pay Dean ($300,000) and Taylor ($500,000), but has appealed those verdicts.
Shelden has filed suit, but that action is stayed pending the Dean/Taylor
appeals.
Plaintiffs argue the collateral source rule applies. See Gill v. Maciejewski, 546
F.3d 557, 564 (8th Cir. 2008) (“The common law collateral source rule holds
that the defendant’s liability shall not be reduced merely because the plaintiff’s
net damages are reduced by payments received from others ... [and] applies to
§ 1983 actions.”) (internal citations and quotations omitted).
Defendants argue the collateral source rule should only apply when there is a
possible subrogation claim by a third-party. Payments made by the State under
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the Nebraska Claims for Wrongful Conviction and Imprisonment Act do not
create a right to subrogation. See Neb. Rev. Stat. § 29-4608 (“Nothing in the ...
Act shall limit the claimant from making any other claim available against any
other party or based upon any other theory of recovery, except that a claimant
who recovers a claim under the act shall not have any other claim against the
state based upon any other theory of recovery or law.”).
Defendants cite no authority for limiting the collateral source rule in the manner
they suggest. “Collateral source relates to gratuities by volunteers or to
reimbursement by reason of a collateral investment previously made by the
injured party.” Mason-Rust v. Laborers’ Int’l Union, 435 F.2d 939 (8th Cir.
1970) (concurring opinion by Judge Lay) (emphasis supplied).
Ruling:
258

Sustained

prohibiting Defendants, their counsel or their witnesses from any mention of
sexual activities of any Plaintiff.
Plaintiffs argue the evidence is irrelevant because they were not made suspects
based on any known or suspected sexual activity. They also argue unfair
prejudice under Rule 403.
Defendants respond that any statement made by Plaintiffs to law enforcement,
to a psychologist or psychiatrist, or to their own criminal defense attorneys,
describing the sexual and physical attack upon Helen Wilson is relevant and
admissible.
Ruling:

Denied without prejudice.

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261

prohibiting Defendants, their counsel or their witnesses from any mention of
criminal convictions (other than the convictions at issue in this case) of any
Plaintiff.
Plaintiffs argue the evidence is irrelevant because they were not made suspects
based on their criminal history. They also argue the evidence cannot be used
for impeachment purposes under Rule 609.
Defendants state there is no exhibit that deals with Plaintiffs’ criminal history
records, and argue the motion is premature.
Ruling:

Denied without prejudice.

Defendants’ motions:
265

preclud[ing] Plaintiff[s] from introducing evidence taken from the Defendants’
personnel files or any testimony about the contents of the Defendants’
personnel files.
Defendants argue this is inadmissible character evidence under Rule 404(b).
They request in camera review of the documents for a determination that they
are irrelevant.
Plaintiffs state there should be no need for in camera review because Judge
Zwart ordered Defendants to produce all of the personnel files (see filing 199).
They will not present documents from Defendants’ personnel files in voir dire
or opening statements, and will approach the bench before introducing such
evidence in witness examinations.

7

Plaintiffs intend to show the County rehired Searcey after he left the
Sheriff’s Office under a disciplinary cloud and continued to employ him
despite his conduct involving Plaintiffs.
Plaintiffs also intend to present evidence that Searcey caused his
disciplinary file to be purged shortly after this case was filed, and they
will be requesting a spoliation instruction.
Ruling:

267

Denied, but without prejudice to relevancy objections at trial.
If the documents must be reviewed, they should be filed as
restricted access documents as provided in Judge Zwart’s
order (filing 199).

prohibiting Plaintiffs, counsel or witnesses from using and/or describing
Plaintiffs in the following terms, innocent, exonerated, wrongfully convicted,
not guilty, in an attempt to suggest that the Plaintiffs were innocent in the
Helen Wilson murder ... [and] directing Plaintiffs not to utilize DNA evidence
in an effort to prove that the Plaintiffs were innocent, exonerated, wrongfully
convicted or not guilty as to the charges to which they pled guilty and/or were
convicted.
Ruling:

Denied, except to the extent stated in the pretrial conference
order (filing 289): “Counsel shall not suggest to the jury that
it is the jury’s responsibility to determine guilt or innocence in
this matter.”

Note:

Judge Zwart ordered on September 12, 2013, that “[t]he
plaintiffs are precluded from offering any opinions held by
Dr. Reena Roy concerning DNA testing or the results of that
testing in 2008 during the trial of this case,” and that “[t]he
defendants remain able to object to Dr. Roy’s statements
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regarding DNA in response to the plaintiffs’ pretrial
designation of Dr. Roy’s deposition testimony for use at trial.”
(Filing 199). That order will be enforced.
269

striking Plaintiffs’ Experts Gerald Soucie, Peter M. Klimset, Corey O’Brien,
and Donald Luckeroth.
1.

Attorney Soucie was identified as a rebuttal expert. He represented
Winslow and has opinions “that the plaintiffs were wrongfully convicted
and actually innocent, ... the investigation ... was reckless, and that the
defendants ignored exonerating evidence and instilled in very vulnerable
individuals the false belief that they were present and participating in the
assault of Helen Wilson.” (Filing 271-2)

2.

Attorney O’Brien led the 2008 task force that investigated the Helen
Wilson homicide. He “is expected to testify and provide his opinions on
the work of the task force and on defendants’ conduct of the Helen
Wilson homicide investigation in 1989.” (Filing 271-1)

3.

Retired FBI Agent Klimset was identified as a rebuttal expert. He “will
have opinions consistent with the Helen Wilson homicide report
prepared by the FBI Behavior Science Unit.” (Filing 271-2). That report
was available to law enforcement during the investigation.

4.

Luckerworth was the Beatrice Chief of Police between 1985-1989. It
was represented at the pretrial conference that he is deceased. The
motion is therefore moot as to this witness.

Defendants object that no Rule 26(a)(2) disclosures were provided for these
witnesses, and the failure was not substantially justified or harmless under Rule

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37, and that the opinions are inadmissible under Rule 702 and Doubert/Kumho
or else should be excluded under Rule 403
Plaintiffs argue no written reports were required because these are not retained
experts. See Fed.R.Civ.P. 26(a)(2)(B). They were only required to the disclose
the subject matter on which the witness is expected to present evidence and a
summary of the facts and opinions to which the witness is expected to testify.
See Fed.R.Civ.P. 26(a)(2)(C).
Ruling:

273

Denied as to Rule 26 objection; sustained as to Soucie’s
opinions because they are unhelpful legal conclusions by a
former lawyer for a party opponent; sustained to any opinions
Corey O’Brien proposes to offer as to whether the defendants
were reckless or assembled false evidence against the plaintiffs
because those opinions are legal conclusions and unhelpful;
otherwise denied.

striking Plaintiffs’ expert witness Dr. Richard Leo, or in the alternative, finding
the testimony of Leo inadmissible at trial in this matter ...
Note: This motion was filed 2 days late, but Defendants filed a motion for
extension of time (filing 272) on the due date. The motion for extension
of time is granted. Plaintiffs have also filed a motion requesting leave
to file a supplemental index of evidence (filing 307), which is granted.
Leo has been identified as an expert on “persuaded false confessions.”
Defendants object that his testimony is inadmissible under Rule 702 and
Doubert/Kumho or else should be excluded under Rule 403.
Ruling:

Denied.
10

276

striking Plaintiffs’ expert witness Dr. Eli Chesen, or in the alternative, finding
the testimony of Chesen inadmissible at trial in this matter ...
Note: This motion was filed 2 days late, but Defendants filed a motion for
extension of time (filing 272) on the due date. The motion for extension
of time is granted.
Chesen is a psychiatrist who purports to be an expert on “Stockholm
Syndrome” and “False Memory Syndrome.”
Defendants object that no proper Rule 26(a)(2) disclosure was provided for this
witness, and the failure was not substantially justified or harmless under Rule
37, and that his opinions are inadmissible under Rule 702 and Doubert/Kumho
or else should be excluded under Rule 403
Chesen’s supplemental affidavit was e-mailed to defendants on July 25, 2013.
Defendants knew of the substance of Dr. Chesen’s testimony and made no
effort to depose him. Instead, they waited until the time for discovery had
passed and moved to strike.
Ruling:

Denied.

December 31, 2013.

BY THE COURT:
s/Richard G. Kopf
Senior United States District Judge

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