Gillispie v. Miami Township et al

Filing 407

ENTRY AND ORDER granting 337 Plaintiff's Motion in Limine No. 3. The Court grants the three requests made by Gillispie in the motion. One, the Court bars Moore from suggesting, at trial, that he cannot pay compensatory damages. Two, the Court bars Moore from arguing, at trial, that he cannot pay punitive damages. Three, the Court bars Moore from appealing, at trial, to the pecuniary interests of the jurors as taxpayers. Signed by Judge Thomas M. Rose on 10-17-2022. (mm)

Case: 3:13-cv-00416-TMR Doc #: 407 Filed: 10/17/22 Page: 1 of 7 PAGEID #: 13887

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROGER DEAN GILLISPIE,

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Plaintiff,
v.
THE CITY OF MIAMI TOWNSHIP, et al.,
Defendants.

Case No. 3:13-cv-416
Judge Thomas M. Rose

______________________________________________________________________________
ENTRY AND ORDER GRANTING PLAINTIFF’S MOTION IN LIMINE NO. 3
(DOC. NO. 337)
______________________________________________________________________________
This case is before the Court on “Plaintiff’s Motion in Limine No. 3 to Exclude Argument
or Suggestion that Defendant Moore Cannot Pay Compensatory Damages, to Preclude Argument
that Defendant Moore Cannot Pay Punitive Damages, and to Preclude Reference to Jurors’
Interests as Taxpayers” (Doc. No. 337), filed by Plaintiff, Roger Dean Gillispie (“Gillispie”).
Defendant Matthew Scott Moore (“Moore”), the sole remaining defendant, filed a response in
opposition to the motion (Doc. No. 346), and Gillispie filed a reply in support of the motion (Doc.
No. 362). The motion is fully briefed and ripe for decision. For the reasons discussed below, the
Court GRANTS Gillispie’s Motion In Limine No. 3 (Doc. No. 337).
I.

ANALYSIS
The Court assumes that the parties are familiar with the general background of this case

and will not delve into its extensive history. For additional background, see Gillispie v. City of
Miami Twp., No. 3:13-cv-416, 2020 WL 5629677 (S.D. Ohio Sept. 21, 2020) (order ruling on
summary judgment motions) and Gillispie v. City of Miami Twp., No. 3:13-cv-416, 2022 WL
4922659 (S.D. Ohio Oct. 4, 2022) (order ruling on three other motions in limine). For purpose of
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ruling on these motions, it is sufficient to explain that Gillispie’s remaining claims against Moore
are all claims pursuant to 42 U.S.C. § 1983 (“Section 1983”). (Doc. No. 298 at PageID 10836,
10932-33.) Section 1983 “created a species of federal tort liability for individuals to sue state and
local officers for deprivations of constitutional rights.” Thompson v. Clark, 212 L. Ed. 2d 382,
142 S. Ct. 1332, 1336-37 (2022). “A § 1983 claim must satisfy two elements: 1) the deprivation
of a right secured by the Constitution or laws of the United States and 2) the deprivation was
caused by a person acting under color of state law.” Ellison v. Garbarino, 48 F.3d 192, 194 (6th
Cir. 1995). Gillispie alleges that he “suffered actual damages, pain and suffering, lost wages, and
other damages as a direct and proximate result” of each of the alleged Section 1983 violations.
(Doc. No. 18 at PageID 94-98.) He seeks an award of compensatory damages, costs, and attorneys’
fees, along with punitive damages. (Id. at PageID 101.)
A. Legal Standards for Addressing Motions In Limine
District courts adjudicate motions in limine under their “inherent authority to manage the
course of trials.” Luce v. United States, 469 U.S. 38, 41 n. 4 (1984). “The purpose of a motion in
limine is to allow a court to rule on issues pertaining to evidence prior to trial to avoid delay and
ensure an evenhanded and expedient trial.” In re E.I. du Pont de Nemours & Co. C-8 Pers. Inj.
Litig., 348 F. Supp. 3d 698, 721 (S.D. Ohio 2016). Courts should exclude evidence pursuant to a
motion in limine “only when evidence is clearly inadmissible on all potential grounds.” Ind. Ins.
Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). The Sixth Circuit advises that
the “better practice” is to address questions regarding the admissibility of broad categories of
evidence “as they arise.” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.
1975). Courts are “almost always better situated during the actual trial to assess the value and
utility of evidence.” In re E.I. du Pont de Nemours & Co. C-8 Pers. Inj. Litig., 348 F. Supp. 3d at
721.
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Denial of a motion in limine does not necessarily mean the evidence that is the subject of
the motion will be admissible at trial. Ind. Ins. Co., 326 F. Supp. 2d at 846. This is because “[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.” U.S. v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). The
district court may change its ruling on the motion in limine, whether prior to trial or at trial, “where
sufficient facts have developed to warrant the change.” Id.
B. Gillispie’s Motion in Limine No. 3
In Gillispie’s Motion in Limine No. 3, he asks this Court to (1) exclude any suggestion that
Defendant Moore cannot pay compensatory damages; (2) preclude argument that Defendant
Moore cannot pay punitive damages; and, (3) preclude reference to jurors’ interests as taxpayers.
(Doc. No. 337.) In his response, Moore opposes each request and argues that Gillispie’s requests
are “misplaced” (see Doc. No. 346 at PageID 12522), but the Court disagrees.
Regarding his first request, the Court initially notes that compensatory and punitive
damages serve different purposes. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416
(2003) (“[c]ompensatory damages are intended to redress the concrete loss that the plaintiff has
suffered by reason of the defendant’s wrongful conduct,” while “punitive damages serve a broader
function” because “they are aimed at deterrence and retribution”) (internal quotation marks and
citations omitted).

The Court agrees with Gillispie that Moore’s personal ability to pay

compensatory damages is not relevant. Sullivan v. Detroit Police Dept., No, 08-CV-12731, 2009
WL 1689643, at *3 (E.D. Mich. June 17, 2009) (a defendant’s “financial status may generally be
considered by a jury in determining a level of punitive damages if such are potentially due, but if
unrelated to this point such evidence would be irrelevant and should be excluded”) (emphasis
added; internal citation omitted); Echavarria v. Roach, No. 16-cv-11118-ADB, 2022 WL 606076,
at *2 (D. Mass. Mar. 1, 2022) (in a Section 1983 case, granting motion in limine to bar any
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reference to the individual defendants’ financial inability to pay a judgment for compensatory
damages because such evidence would be irrelevant to any claims and may result in unfair
prejudice). Therefore, at trial, Moore is barred from suggesting that he cannot pay compensatory
damages. Id.; Fed. R. Evid. 402; Fed. R. Evid. 403.
Regarding his second request, Gillispie argues that Moore should be barred from
submitting evidence at trial about his ability to pay punitive damages because, despite Gillipie
asking for such information during the discovery period, Moore did not produce discovery related
to any claim of an inability to pay. (Doc. No. 337 at PageID 12434.) Moore objected to Gillispie’s
interrogatory request for information regarding Moore’s net financial worth; Gillispie had
expressly explained that he was seeking such information “[f]or punitive damages purposes.”
(Doc. No. 170-7 at PageID 3840.) More importantly, during Moore’s deposition, his counsel told
Gillispie’s counsel that he would instruct Moore not to answer any questions about his financial
net worth or questions related to the punitive damages claim. (Doc. No. 170 at PageID 3712
(Moore’s counsel stating “I would object and not allow him to answer any questions now relative
to any punitive damages claim as I asserted in the interrogatory responses to begin with”), PageID
3715 (Moore’s counsel responding “Yes” to Gillispie’s counsel asking, “[i]f I were to ask him a
question right now about his financial net worth, you would instruct him not to answer, correct?”).)
In Moore’s response to the pending motion, although he opposes being precluded from arguing
that he cannot pay punitive damages, Moore does not defend, attempt to explain, or even address
his complete refusal to provide such information in discovery. (Doc. No. 346.)
As referenced above, a defendant’s “financial status may generally be considered by a jury
in determining a level of punitive damages if such are potentially due.” Sullivan, 2009 WL
1689643, at *3 (internal citation omitted). However, “it is the defendant’s burden to present

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evidence of his ability to pay [a potential punitive damages award] when he would like that
information to be considered by the jury.” Johnson v. Howard, 24 F. App’x 480, 488 (6th Cir.
2001) (because the defendant “chose not to present evidence of his inability to pay a large punitive
award,” he was unable to complain on appeal that the jury did not consider such evidence); see
also Kemezy v. Peters, 79 F.3d 33, 36 (7th Cir. 1996) (a plaintiff is not required to introduce
evidence of defendant’s net worth, but a “defendant who cannot pay a large award of punitive
damages can point this out to the jury”).
It is apparent that Gillispie anticipated that Moore might argue (and submit supporting
evidence) at trial that he would be unable to pay a punitive damages award, which Moore would
generally be permitted to do in accordance with the authority set forth above. Therefore, during
discovery, Gillispie sought information relevant to that anticipated argument—even specifically
informing Moore that the reason for requesting the information was for punitive damages
purposes. Yet, during discovery, Moore stonewalled Gillispie’s efforts and completely refused to
provide information regarding this potential defense to punitive damages, including when
specifically asked about it during his deposition. Therefore, with discovery now closed and trial
only weeks away, Moore cannot be permitted to submit such information at trial or argue an
inability to pay punitive damages. The Court will not permit such gamesmanship. It would run
counter to the fair and just determination of this action to allow Moore to refuse to answer any
questions on that topic during his deposition (and during the entire discovery period), but then
allow him to answer those questions at trial and argue an inability to pay punitive damages. Fed.
R. Civ. P. 1; Fed. R. Evid. 102; cf. Traficant v. C.I.R., 884 F.2d 258, 265 (6th Cir. 1989) (affirming
lower court’s decision to bar party from introducing evidence on a topic where that party had
refused to answer questions on that topic during discovery by asserting the privilege against self-

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incrimination); Dunkin’ Donuts Inc. v. Taseski, 47 F. Supp. 2d 867, 874 (E.D. Mich. 1999) (barring
defendant from introducing testimony or other evidence in support of his version of the damages
amount because he invoked the privilege against self-incrimination and refused to answer any
questions regarding the issue during his deposition); Beach Mart, Inc. v. L&L Wings, Inc., No.
2:11-cv-44-FL, 2020 WL 6708236, at *2 (E.D.N.C. Nov. 13, 2020) (where defendant’s witness
“refused to answer [a] question during his deposition, he may not answer [the] question at trial, or
otherwise allow [defendant] to use the attorney-client privilege impermissibility as a sword and
shield”). Therefore, at trial, Moore is barred from arguing that he cannot pay punitive damages.
Regarding his third request, the Court agrees with Gillispie that arguments appealing to a
juror’s pecuniary interests as a taxpayer are improper. Freedom’s Path at Dayton v. Dayton Metro.
Hous. Auth., No. 3:16-cv-466, --- F. Supp. 3d ---, 2022 WL 1786511, at *5 (S.D. Ohio June 1,
2022) (“[a]ppeals to the pecuniary interests of jurors are improper”); Moore ex rel. Estate of Grady
v. Tuelja, 546 F.3d 423, 429 (7th Cir. 2008) (arguments as “to jurors’ pecuniary interests as
taxpayers are, of course, generally improper”). “Such evidence is improper under Federal Rules
of Evidence 401, 402, and 403, as it serves only to elicit juror sympathy for the defendant and to
encourage the jury to nullify.” Freedom’s Path at Dayton, 2022 WL 1786511, at *5. Therefore,
at trial, Moore is barred from appealing to the pecuniary interests of the jurors as taxpayers.
II.

CONCLUSION
For the reasons stated above, the Court GRANTS Gillispie’s Motion In Limine No. 3 (Doc.

No. 337). The Court grants the three requests made by Gillispie in the motion. One, the Court
bars Moore from suggesting, at trial, that he cannot pay compensatory damages. Two, the Court
bars Moore from arguing, at trial, that he cannot pay punitive damages. Three, the Court bars
Moore from appealing, at trial, to the pecuniary interests of the jurors as taxpayers.

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DONE and ORDERED in Dayton, Ohio, this Monday, October 17, 2022.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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