Smith v. City of Troy Ohio et al

Filing 44

ORDER DENYING DEFENDANTS' JOINT MOTION IN LIMINE (Doc. 37 ). Signed by Chief Magistrate Judge Sharon L. Ovington on 4/12/2016. (cvf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
VICTOR L. SMITH,
Plaintiff,
vs.
CITY OF TROY, OHIO, et al.,
Defendants.

: Case No. 3:15-cv-054
:
: District Judge Thomas M. Rose
: Chief Magistrate Judge Sharon L. Ovington
:
:
:
:
:

ORDER DENYING DEFENDANTS’
JOINT MOTION IN LIMINE (Doc. 37)
This civil action is before the Court on Defendants’ joint motion in limine to
exclude Plaintiff’s expert witnesses (Doc. 37) and the parties’ responsive memoranda
(Docs. 38, 41). 1
I. BACKGROUND
On February 10, 2015, Plaintiff Victor L. Smith brought this civil action against
Defendants under 42 U.S.C. § 1983, the Americans with Disabilities Act (the “ADA”)
(42 U.S.C. § 12101, et seq.), and Ohio state law. (Doc. 1). Plaintiff alleges that on
February 11, 2014, he experienced an epileptic seizure while driving in Troy, Ohio,
causing him to drive his car off the road and into the front yard of a residential property.
(Id. at 4, ¶¶ 13-14). Plaintiff asserts that Defendants Osting, Gates, Hohenstein, and
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Defendants include: City of Troy, Ohio (“City of Troy”); Miami County, Ohio (“Miami
County”); Deputy P.M. Osting II (“Osting”); Patrolman S.A. Gates (“Gates”); Patrolman H.
Hohenstein (“Hohenstein”); Patrolman C.A. Madigan (“Madigan”). (Doc. 37).

Madigan (collectively, “Defendant Officers”) were called to the scene, where Plaintiff
was found in apparent medical distress, though unable to communicate meaningfully
despite his attempts. (Id. at 4, ¶¶ 15-18).
Plaintiff alleges that, ultimately, he was taken to the ground by force and
physically restrained before one or all Defendant Officers stunned him several times in
the back and neck using a TASER, all while Plaintiff continued to exhibit signs of
epileptic seizures. (Id. at 4-5, ¶¶ 19-27). According to Plaintiff, it was not until after
Defendant Officers repeatedly stunned Plaintiff with TASERs that they finally called for
medical assistance. (Id. at 5, ¶ 27). Plaintiff states that he was then transported to the
hospital, where a physician confirmed that he had experienced an epileptic seizure. (Id.
at 5, ¶¶ 28-29).
Plaintiff alleges that as a direct and proximate result of the incident, he
experienced “pain and suffering, painful injuries, humiliation, medical intervention,
depression, anxiety, fear and extreme emotional distress,” and that he now “require[s] the
care of a mental health professional.” (Id. at 6-7, ¶ 37). Plaintiff seeks compensatory and
punitive damages subject to pre-judgment and post-judgment interest, as well as
attorneys’ fees and costs. (Id. at 20).
II. STANDARD OF REVIEW
“Motions in limine are generally used to ensure evenhanded and expeditious
management of trials by eliminating evidence that is clearly inadmissible for any
purpose.” Indiana Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004)
(citing Jonasson v. Lutheran Child and Family Serv., 115 F.3d 436, 440 (7th Cir.1997)).
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Similar to other evidentiary rulings, the decision to grant or deny a motion in limine is
within the sound discretion of the trial court. Otto v. Variable Annuity Life Ins. Co., 134
F.3d 841, 852 (7th Cir. 1998). However, “[o]rders in limine which exclude broad
categories of evidence should rarely be employed.” Sperberg v. Goodyear Tire &
Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). Rather, motions in limine are “generally
confined to very specific evidentiary issues of an extremely prejudicial nature.” Brown v.
Oakland Cnty., No. 14-CV-13159, 2015 WL 5317194, at *2 (E.D. Mich. Sept. 10, 2015).
In short, if the evidence is not plainly inadmissible on all potential grounds, the
Court’s “evidentiary rulings should be deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in proper context.” Indiana Ins. Co.,
326 F. Supp. 2d at 846. Additionally, “[t]he denial of a motion in limine is warranted
where the moving party seeks to argue the merits of its case and preclude the non-moving
party from presenting its case.” Dunn ex rel. Albery v. State Farm Mut. Auto. Ins. Co.,
264 F.R.D. 266, 275 (E.D. Mich. 2009) (citations omitted).
Notably, however, “[d]enial of a motion in limine does not necessarily mean that
all evidence contemplated by the motion will be admitted at trial [… but rather] that,
without the context of trial, the court is unable to determine whether the evidence in
question should be excluded.” Indiana Ins. Co., 326 F. Supp. 2d at 846. “The court will
entertain objections on individual proffers as they arise at trial, even though the proffer
falls within the scope of a denied motion in limine.” Id. (citations omitted). “Indeed even
if nothing unexpected happens at trial, the district judge is free, in the exercise of sound

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judicial discretion, to alter a previous in limine ruling.” Luce v. United States, 469 U.S.
38, 41-42 (1984).
III. ANALYSIS
Defendants seek “an Order in Limine to exclude any expert witnesses that Plaintiff
may attempt to identify.” (Doc. 37 at 1). More specifically, Defendants argue that
“[b]ecause Plaintiff failed to designate his expert witnesses and disclose expert reports
and/or summaries of opinions in compliance with Rule 26(a)(2) … he should be barred
from calling any expert witnesses at trial; therefore, liminal treatment is appropriate.”
(Id. at 3). Plaintiff opposes the motion as “premature, procedurally improper, and legally
insufficient,” and argues that “Defendants are not trying to narrow evidentiary issues for
trial, but rather, are trying to tee-up an argument for a future summary judgment motion.”
(Doc. 38 at 8).
Fed. R. Civ. P. 26(a)(2) requires parties to make certain disclosures regarding
expert witnesses whose testimony may be used at trial. “A party must make these
disclosures at the times and in the sequence that the court orders,” or at least ninety day
before the trial date. Fed. R. Civ. P. 26(a)(2)(D). “If a party fails to provide information
or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1) (emphasis
added).
Here, following two unopposed extensions, Plaintiff’s primary expert designations
were due to be disclosed by January 29, 2016. (Doc. 30). To date, Plaintiff has not
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specifically identified any expert witnesses, nor has Plaintiff attempted to designate any
expert witnesses since the deadline passed. Indeed, Plaintiff asserts that expert testimony
is not required to prove his claims, and that his timely lay witness disclosures (Doc. 24)
identify the witnesses on which he intends to rely. (Doc. 38 at 3-8).
In short, Defendants’ motion in limine seeks to exclude expert witnesses, and
preclude future identification of experts, as a sanction for Plaintiff’s alleged violation of
Rule 26. However, exclusion may be an appropriate sanction under Rule 37(c)(1) where
there is an actual violation of the Rule 26(a) or (e) disclosure requirements. But this
Court cannot find such a “violation,” i.e., a failure to disclose expert witnesses pursuant
to rule, where Plaintiff has neither designated, nor even indicated that he intends to call
expert witnesses at trial. In other words, Plaintiff cannot be required to designate experts
that he does not have. And as Plaintiff has not yet indicated a need or desire to call any
expert witnesses, it would be premature to expect him to defend against Rule 37
sanctions by showing that his alleged “failure” to make such disclosures “was
substantially justified or [] harmless.”
Defendants’ motion in limine appears to largely rely upon their own assertion that
Plaintiff will need expert testimony in order to prove his claims, and thus Plaintiff’s lack
of expert designations amounts to a failure or violation of the disclosure requirements.
However, the Court declines at this time, and certainly in the context of a motion in
limine, to address the issue of whether Plaintiff is required to present expert testimony.
As previously stated, motions in limine are appropriate for “eliminating evidence that is
clearly inadmissible for any purpose.” Indiana Ins. Co., 326 F. Supp. 2d at 846 (citing
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Jonasson, 115 F.3d at 440). Even acknowledging the somewhat advisory nature of
liminal orders, this Court is not prepared to find such a broad exclusion appropriate here.
IV. CONCLUSION
Based upon the foregoing, Defendants’ joint motion in limine (Doc. 37) is
DENIED.
Date: 4/12/2016

s/ Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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