Livers v. Schenck et al

Filing 671

MEMORANDUM AND ORDER - Defendants Lambert's and O'Callaghan's objection to an order of the magistrate judge (Filing No. #617 ) is denied as moot. The plaintiff's motion in limine to exclude references to false allegations of inappropriate touching of minors (Filing No. #627 ) is denied without prejudice to reassertion at trial. The plaintiff's motion in limine to exclude references to a prior ruling of the Cass County District Court on a motion to suppress in State v. Sampson, No. CR06-55 (Filing No. #634 ) is granted. Defendants Lambert's and O'Callaghan's objection to the magistrate judge's order denying their motion to refer the case to mediation (Filing No. #657 ) is overruled. Ordered by Judge Joseph F. Bataillon. (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MATTHEW LIVERS,
Plaintiff,
8:08CV107
vs.
EARL SCHENCK, Cass County Sheriff’s
Investigator, et al.; WILLIAM LAMBERT,
Nebraska State Patrol Investigator;
CHARLES O’CALLAGHAN, Nebraska
State Patrol Investigator; SANDRA
WEYERS, Cass County Sheriff’s Sergeant;
COUNTY OF CASS, Nebraska; DAVID
KOFOED, Commander of the Douglas
County Sheriff’s Office Crime Scene
Investigation Division; TIM DUNNING,
Sheriff of Douglas County; and COUNTY
OF DOUGLAS, NEBRASKA,

MEMORANDUM AND ORDER

Defendants.

This matter is before the court on:
1.
Filing No. 617 — defendants Lambert’s and O'Callaghan’s
objection to an order of the magistrate judge (Filing No. 592)
The objection is directed to the magistrate judge’s ruling on a matter involving
discovery materials from Nicholas Sampson, the plaintiff in the case of Sampson v.
Lambert, No. 8:07CV155, which was formerly consolidated with this case. The cases
are no longer consolidated and the Sampson v. Lambert case has been stayed pending
resolution of this case. Accordingly, the motion will be denied as moot.
2.
Filing No. 627 — plaintiff’s motion in limine to exclude
references to false allegations of inappropriate touching of minors
The plaintiff alleges the probative value of the evidence is outweighed by
potential prejudice. Defendants contend that the evidence is relevant to show that the

plaintiff had been in a recent and emotional dispute with the Stocks, whose murder
investigation is the issue in this action.
Although the motion in limine is an important tool available to the trial judge to
ensure the expeditious and evenhanded management of the trial proceedings,
performing a gatekeeping function and sharpening the focus for later trial proceedings,
some evidentiary submissions cannot be evaluated accurately or sufficiently by the trial
judge in such a procedural environment.

Jonasson v. Lutheran Child and Family

Servs., 115 F.3d 436, 440 (7th Cir. 1997).

A motion in limine is appropriate for

“evidentiary submissions that clearly ought not be presented to the jury because they
clearly would be inadmissible for any purpose.” Id. In other instances, it is necessary to
defer ruling until during trial, when the trial judge can better estimate the impact of the
evidence on the jury. Id. To the extent that a party challenges the probative value of
the evidence, an attack upon the probative sufficiency of evidence relates not to
admissibility but to the weight of the evidence and is a matter for the trier of fact to
resolve. United States v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996).
The court is unable to evaluate the relevance of the challenged evidence in the
context of a pretrial motion. The court is inclined to believe that the evidence may be
relevant as to the reasonableness of or motivation for the defendants’ actions, but the
court cannot assess the relative balance of its relevance to the danger of prejudice at
this juncture. The court will admit the evidence at issue only on a showing that it is
relevant to the issues in the case, and only to the extent that the relevance of the
evidence outweighs its potential to cause prejudice or confusion under Fed. R. Evid.
403.
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The plaintiff’s concerns may warrant a cautionary or limiting instruction, but the
court cannot determine the ambit of such an instruction at this time. The court finds the
motion can be adequately resolved at trial, either in a hearing immediately prior to
commencement of the trial, as an objection with a sidebar, or with a review of the
evidence outside the presence of the jury. The defendants are cautioned to approach
the bench before eliciting any such testimony. Accordingly, the court finds that the
motion in limine should be overruled at this time, without prejudice to its reassertion via
timely objection to the admissibility of such evidence at trial.
3.
Filing No. 634 — plaintiff’s motion in limine to exclude
references to a prior ruling of the Cass County District Court on a
motion to suppress in State v. Sampson, No. CR06-55
The plaintiff asserts that the evidence is flagrantly prejudicial and would be
afforded undue weight by the jury by virtue of the fact that the findings were made by a
judge. Defendants assert that the evidence is relevant to show that a neutral third party
reviewed the evidence and deemed it adequate.
The court agrees with the plaintiff that the introduction of judicial opinions
generally has the potential to confuse the jury and conflicts with the court's responsibility
to instruct on the law. See United States v. Willis, 277 F.3d 1026, 1033 (8th Cir. 2002)
(finding no error in exclusion of prior judicial decisions), to Greycas, Inc. v. Proud, 826
F.2d 1560, 1567 (7th Cir.1987).
4.
Filing No. 657 – defendants Lambert’s and O’Callaghan’s
objection to the magistrate judge’s order denying their motion to
refer the case to mediation (Filing No. 656)
The magistrate judge denied the defendants Lambert’s and O’ Callaghan’s
motion for an order referring the case to mediation.
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After hearing both sides, the

magistrate judge agreed that counsel’s time in this matter would be better spent
preparing for trial. The defendants’ statement of objections does not suggest that the
magistrate judge was misinformed of the facts and circumstances herein. The court
agrees with the magistrate judge that forced mediation would be of little utility in this
case, especially this close to trial. Accordingly,
IT IS ORDERED:
1.

Defendants Lambert’s and O’Callaghan’s objection to an order of the

magistrate judge (Filing No. 617) is denied as moot.
2.

The plaintiff’s motion in limine to exclude references to false allegations of

inappropriate touching of minors (Filing No. 627) is denied without prejudice to
reassertion at trial.
3.

The plaintiff’s motion in limine to exclude references to a prior ruling of the

Cass County District Court on a motion to suppress in State v. Sampson, No. CR06-55
(Filing No. 634) is granted.
4.

Defendants Lambert’s and O’Callaghan’s objection to the magistrate

judge’s order denying their motion to refer the case to mediation (Filing No. 657) is
overruled.
Dated this 8th day of October, 2013.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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