Easley v. Haywood et al

Filing 328

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS IN LIMINE (Docs. 301 , 303 , 304 , 305 ). Signed by Judge Timothy S. Black on 10/19/2015. (mr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DAVID EASLEY,
Plaintiff,
vs.
GARY HAYWOOD, et al.,
Defendants.

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Case No. 1:08-cv-601
Judge Timothy S. Black

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTIONS IN LIMINE (Docs. 301, 303, 304, 305) 1
This civil action is before the Court on Defendant’s motions in limine (Docs. 301,
303, 304, 305) and the parties’ responsive memoranda (Docs. 309, 310, 311, 321).
Defendant moves the Court to prohibit: (1) Plaintiff from offering non-expert medical
opinions and from arguing inadequate medical care claims; (2) the introduction of
protected evidence; (3) the introduction of portions of the use of force reports; and
(4) any references to the prior jury trial or the jury verdict.
Defendant previously addressed items (1)–(3) in motions in limine he filed prior to
the May 4, 2015 trial. (Docs. 229, 230, 231). The Court ruled on those motions prior to
the commencement of that trial. (See Doc. 256).
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On May 4, 2015, this civil action proceeded to a jury trial. The jury was asked to determine
whether Defendants Gary Haywood and Christopher Brannigan, correctional officers at the
Southern Ohio Correctional Facility (“SOCF”), used excessive force against Plaintiff on July 3,
2008, in violation of his Eighth Amendment right to be free from cruel and unusual punishment.
(See Doc. 265). On May 8, 2015, the jury returned a verdict in favor of Defendant Brannigan
and hung as to the excessive force claim brought against Defendant Haywood. (Doc. 270). This
civil action is set to proceed to a second jury trial (as to Defendant Haywood, only) on October
26, 2015.

I.

STANDARD OF REVIEW

“A ruling on a motion in limine is no more than a preliminary, or advisory,
opinion that falls entirely within the discretion of the district court.” United States v.
Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). Courts may properly deny or defer ruling on
motions in limine where issues such as foundation, relevance, and potential prejudice
require the context of the trial for resolution. Indiana Ins. Co. v. Gen. Elec. Co., 326 F.
Supp.2d 844 846 (N.D. Ohio 2004). Moreover, because in limine rulings are advisory in
nature, a court may alter its ruling during the course of the trial. Luce v. United States,
469 U.S. 38, 41–42 (1984).
II.
A.

ANALYSIS

Medical Opinions and Care

Defendant moves the Court to prohibit Plaintiff from offering non-expert medical
opinions and from arguing inadequate medical care claims, which were previously
dismissed. (Doc. 305). Defendant’s arguments on this issue are similar to those he made
prior to the May 4, 2015 trial. (Compare Doc. 305, with Doc. 229). Plaintiff was heard
on this issue in the first instance (see Doc. 237), and now offers a similar response (see
Doc. 309). Accordingly, the Court adopts its previous ruling on Plaintiff’s ability to
testify about his claimed injuries, and the adequacy of medical treatment provided, and
requires counsel to review carefully that ruling prior to the October 26, 2015 trial. (See
Doc. 256 at 2–5).

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B.

Protected Evidence

Defendant moves the Court to prohibit the introduction of protected evidence at
trial. (Doc. 304). Defendant’s arguments on this issue are similar to those he made prior
to the May 4, 2015 trial. (Compare Doc. 304, with Doc. 230). Plaintiff was heard on
this issue in the first instance (see Doc. 238), and now offers a similar response (see Doc.
310). Accordingly, the Court adopts its previous ruling on the introduction of prohibited
evidence at trial, and require counsel to review carefully that ruling prior to the October
26, 2015 trial. (See Doc. 256 at 5).
C.

Use of Force Reports

Defendant moves the Court to prohibit the introduction of the cover pages of the
use-of-force reports regarding the July 3, 2008 incident (Bates Nos. 000001 and 000053)
at trial. (Doc. 301). 2 Defendant filed a similar motion prior to the May 4, 2015 trial.
(See Doc. 231). The Court ruled that the cover pages were relevant to Plaintiff’s claims
and declined to prohibit the introduction of the cover pages pursuant to Rule 403. (Doc.
256 at 7–8). However, the Court noted that whether the cover pages are part of the use of
force reports is a foundational issue best resolved at trial. (Id. at 7, n. 5).
Defendant’s arguments on this issue are similar to those he made prior to the May
4, 2015 trial. (Compare Doc. 301, with Doc. 231). Here, Defendant notes that at the
May 4, 2015 trial, Use-of-Force Committee Chairman Roger Weeks testified that the
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The Court notes that Defendants characterizes the pages at issue as “cover pages,” whereas
Plaintiff characterizes them as “first pages.” The Court will refer to the pages at issue as “cover
pages,” though it has no opinion as to which characterization is more appropriate.

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cover pages were neither part of the use-of-force reports, nor authored by the respective
use-of-force committees. (See Doc. 321-1 at 3–4). Weeks also testified that he could not
identify the actual author of the cover pages. (See id. at 55). 3 Accordingly, Defendant
argues that the cover pages should be excluded pursuant to Federal Rules of Evidence
403 and 802.
1. Rule 403
Only evidence that is relevant is admissible at trial. Fed. R. Evid. 402. Evidence
is relevant only if “it has any tendency to make a 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. Even 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. “Unfair prejudice does not mean the damage to a [party’s]
case that results from the legitimate probative force of the evidence; rather it refers to
evidence which tends to suggest [a] decision on an improper basis.” United States v.
Newsom, 452 F.3d 593, 603 (6th Cir. 2006). A district court has broad discretion in
making a Rule 403 determination. U.S. v. Bonds, 12 F.3d 540, 567 (1993).
Defendant argues that that the cover pages pose a risk of unfair prejudice and
confusion. Without citation, Defendant argues that “it was apparent throughout the
previous trial that this caused confusion with the jury regarding whether excessive and/or

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However, Weeks indicated that the cover pages were prepared by “the office professional, by
the warden’s office.” (Id. at 2).

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inappropriate were synonymous.” (Doc. 301 at 2). However, the Court declines to infer
that the jury was confused on this issue simply because they hung as to the claim brought
against Defendant Haywood.
As the Court explained in its prior Order, the cover page to the September 15,
2008 report is consistent with the factual findings contained within the narrative section
of the report, in that the committee concluded that the force used was “inappropriate
and/or excessive.” (Doc. 176-13 at 1) (emphasis added). The Court also noted that
Defendant would have the opportunity to introduce testimony explaining the committee’s
conclusion and the reference to discipline contained on the cover page, and that the Court
would advise the jury as to the legal standard Plaintiff must satisfy to prove a violation of
his Eighth Amendment rights. For these reasons, and for the other reasons set forth in the
Court’s prior Order (Doc. 256 at 5–8), the Court declines to prohibit the introduction of
the cover pages pursuant to Rule 403.
2. Rule 802
Hearsay is a statement that: “(1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted in the statement.” Fed. R. Evid. 801. Hearsay is inadmissible unless an
exception found in a federal statute, the Federal Rules of Evidence, or other rules
prescribed by the Supreme Court applies. See Fed. R. Evid. 802.
The Federal Rules of Evidence provide exceptions to the rule against hearsay for
public records. A record or statement of a public office is not excluded by the rule
against hearsay if it sets out “factual findings from a legally authorized investigation” and
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“the opponent does not show that the source of information or other circumstances
indicate a lack of trustworthiness.” Fed. R. Evid. 803(8).
The Ohio Administrative Code provides for the compilation of cover pages, such
as the ones at issue. Pursuant to Ohio Administrative Code § 5120-9-02, a use of force
investigator is required to prepare a report to the warden, a summary of the statements
received during the investigation, the use of force packet, and any other information
received by the investigator. O.A.C. § 5120-9-02(H). Then, the warden can elect to
either return the matter to the investigator, or may take other actions as the warden deems
appropriate. O.A.C. § 5120-9-02(1). Even Weeks acknowledged that the cover page was
authored by an employee in the warden’s office. (See Doc. 321-1 at 2).
For these reasons, Weeks testimony is insufficient to show that the source of
information or other circumstances regarding the creation of the cover pages indicate a
lack of trustworthiness. Accordingly, the Court declines to exclude the cover pages
pursuant to the rule against hearsay.
D.

References to the Prior Jury Trial and the Jury Verdict

Defendant moves the Court to prohibit any references to the May 4, 2015 jury trial
or the verdict reached therein. (See Doc. 303). Plaintiff did not file a response. 4 The
Court has not previously ruled on this issue.
The Sixth Circuit has explained:

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In its August 10, 2015 Notation Order, the Court set forth a briefing schedule for motions in
limine. Memoranda contra were due on or before October 9, 2015. Because Plaintiff did not file
a response, the Court considers Defendant’s motion (Doc. 303) to be unopposed.

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[e]vidence is properly excluded when it poses a ‘likelihood of misleading
the jury and confusing the issue.’” Blakely v. City of Clarksville, 244 Fed.
App’x 681, 683–84 (6th Cir. 2007) (quoting Olin–Mathieson Chem. Corp.
v. Allis–Chalmers Mfg. Co., 438 F.2d 833, 837–38 (6th Cir.1971)).
“Evidence of a prior verdict is likely to mislead the jury because ‘[a] jury is
likely to give a prior verdict against the same defendant more weight than it
warrants. Admission of a prior verdict creates the possibility that the jury
will defer to the earlier result and thus will, effectively, decide a case on
evidence not before it.’” Id. at 684 (quoting Coleman Motor Co. v.
Chrysler Corp., 525 F.2d 1338, 1351 (3d Cir. 1975)). “In essence, the jury
may ‘import the whole verdict . . . from the prior proceeding.’” Id.
(quoting Engquist v. Or. Dep't of Agric., 478 F.3d 985, 1010 (9th Cir.
2007)).
Bonkowski v. Allstate Ins. Co., 544 F. App’x 597, 611 (6th Cir. 2013).
The Sixth Circuit’s decision in Blakely is instructive. There, the Sixth Circuit
found that the district court abused its discretion, despite giving the jury a limiting
instruction, by permitting an African-American detective to testify, in a civil rights action
brought by African-American law enforcement officer, about a verdict in similar racial
discrimination suit that detective brought against city. Blakely, 244 F. App’x 681, 684.
The court noted that, while the detective’s history of similar treatment and experiences
may have had some probative value, the testimony regarding a jury verdict in his favor
did not “possess such additional probative value . . . to overcome the risk of prejudice and
confusion that the verdict posed.” (Id.)
Defendant requests that prior trial testimony is referred to as testimony given
while the witness was under oath “on a prior occasion.” See e.g., Miami Valley Fair
Hous. Ctr., Inc. v. Connor Grp., No. 3:10-cv-83, 2014 WL 1818586, at *2 (S.D. Ohio
May 7, 2014). In light of the danger of unfair prejudice and confusion of the issues,
references to the May 4, 2015 trial, or the verdict reached, shall not be made. If
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testimony from the prior trial must be referenced, counsel shall refer to it as testimony
given “on a prior occasion.”
III.

CONCLUSION

Accordingly, for the reasons stated above and in the Court’s prior Order on these
issues (Doc. 256), Defendant’s motions in limine (301, 303, 304, 305) are GRANTED
IN PART and DENIED IN PART, as set forth in this Order.
IT IS SO ORDERED.
Date: 10/19/15

s/ Timothy S. Black
Timothy S. Black
United States District Judge

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