FORD v. CITY OF PITTSBURGH et al
ORDER denying 502 Motion for Reconsideration. Signed by Chief Magistrate Judge Maureen P. Kelly on 12/5/17. (ard)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
POLICE OFFICER DAVID DERBISH
POLICE OFFICER DAVID DERBISH,
CITY OF PITTSBURGH,
Cross-Claim Defendant. )
LEON D. FORD,
Civil Action No. 13-1364
Chief Magistrate Judge Maureen P. Kelly
Re: ECF No. 502
Presently before the Court is Defendant's Motion for Reconsideration, ECF No. 502, and
Plaintiffs Response to Defendant Derbish's Motion to Reconsider, ECF No. 504.
As the parties and their counsel are well aware, the instant action was filed on September
13, 2013. ECF No. 1. In the over four-year history of this case, which involves over 500 docket
entries, the Court has dealt with a multitude of motions, considered and ruled on over 35 motions
in limine and related briefing, conducted all pretrial proceedings and presided over a more than
three-week jury trial of this case. During this course of time, the parties, through their counsel,
have raised, and at times raised again, all possible issues.
Following the conclusion of the first trial on October 10, 2017, at which the jury
deadlocked on the issue of whether Defendant David Derbish used excessive force in shooting
Plaintiff Leon Ford in violation of his rights under Section 1983 of the Civil Rights Act and the
Fourth Amendment of the United States Constitution, this Court conducted a 90-minute status
conference on October 20, 2017, with counsel to discuss the retrial and the scheduling of the same.
ECF No. 496. The Court clearly informed counsel for both sides 1 that the retrial will not involve
new evidence, witnesses or issues and that the rulings on the motions in limine remain the same.
Despite the Court's rulings during the October 20, 2017, status conference, on November
20, 2017, remaining Defendant David Derbish filed the instant Motion for Reconsideration seeking
to file new motions in limine, new jury instructions and a new verdict slip, all of which he states
"will be materially different from the first trial in this matter." ECF No. 502 iii! 19, 21. Defendant
Derbish does not specify the subject matter of the new proposed motions in limine or jury
As a general rule,
District courts have the discretion to admit or exclude new evidence on
retrial. See Habecker v. Clark Equip. Co., 36 F.3d 278, 288 (3d Cir. 1994)
("Habecker III"); see also Martin's Herend Imports, Inc. v. Diamond & Gem
Trading United States of Am. Co., 195 F.3d 765, 774 (5th Cir. 1999);
Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1449 (10th Cir. 1993); 11
Charles Alan Wright, Arthur R. Miller, and Kay Kane, Federal Practice and
Procedure, § 2803, at 50 (2d ed. 1995). The Court must be guided by
considerations of fairness to the parties, see Martin's Herend Imports, 195
F.3d at 774; Cleveland, 985 F.2d at 1449-50, and avoid undue prejudice to
either party. See Habecker v. Clark Equip. Co., 942 F.2d 210, 218 (3d Cir.
1991) ("Habecker II"). Only where a court perceives a manifest injustice
in limiting evidence at retrial must it allow additional testimony and
exhibits. See Martin's Herend Imports, 195 F.3d at 775.
Total Containment, Inc. v. Dayco Prods., 177 F. Supp. 2d 332, 338 (E.D. Pa. 2001) (emphasis
1 In the Motion for Reconsideration, Defendant appears to imply that the Court has abandoned its proper neutral role
and displayed favoritism to one party, ECF No. 502 iii! 13, 25. This implication is not accurate as the Court has not
favored either party, permitting no additional pre-trial filings from either side.
As discussed during the status conference, there is no need for this Court, nor is it in the
interests of the efficient administration of justice, to allow either party to relitigate issues already
thoroughly reviewed and decided by the Court. Further, nothing set forth in Defendant's Motion
for Reconsideration indicates that additional pre-trial evidentiary rulings are necessary to prevent
a manifest injustice.
The only difference between the first trial and the second trial will be that the claims have
been narrowed. The new trial will not include Plaintiffs claim of assault and battery (Count VI)
against former Defendant Andrew Miller, which was not the primary claim of Plaintiff, the primary
claim being the excessive force claim against Defendant Derbish (Counts I and II) in shooting
Plaintiff. Accordingly, it is the intention of this Court to revise the jury instructions that were used
during the first trial to exclude reference to then Defendant Andrew Miller and to the assault and
battery claim. Similarly, as to the verdict slip, it is the intention of this Court to revise the verdict
slip that was used during the first trial to exclude reference to then Defendant Andrew Miller and
to the assault and battery claim. As is the practice of this Court, and as followed in the first trial,
all counsel will be provided with copies of the jury instructions and the verdict slip prior to the
closing arguments and given the opportunity to raise any objections.
AND NOW, this
day of December, 2017, upon consideration of Defendant's Motion
for Reconsideration, ECF No. 502, and Plaintiffs Response to Defendant Derbish's Motion to
Reconsider, ECF No. 504, IT IS HEREBY ORDERED that the Motion for Reconsideration is
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