Tankesly v. Corrections Corporation of America et al
Filing
385
MEMORANDUM OPINION OF THE COURT: For the foregoing reasons, Plaintiff's Motion in Limine is granted in part to exclude references to the nature and details of Plaintiff's convictions, and denied in part as to disclosure of Plaintiff' s term of sentence, number of convictions, or status as a felon. (Dkt. No. 330.) Defendant's Motion in Limine Nos. 1, 2, 3, 5, 7, and 9 are granted. (Dkt. Nos. 331, 332, 333, 335, 337, 339.) Defendant's Motion in Limine No. 4 is granted in part to exclude out-of-court statements or documents relating to Dr. Coble, CoreCivic, SCCF, or other hospitals, and taken under advisement in part if such statements become relevant for impeachment. (Dkt. No. 334.) Defendant's Motion in Limine No. 6 is granted in part to exclude comparisons between Plaintiff's medical care from Defendant and from other providers. (Dkt. No. 336.) It is denied in part insofar as Plaintiff may show care from others within Defendant's knowledge or re late his experiences with Defendant at the pill-call window. (Id.) Defendant's Motion in Limine No. 8 is taken under advisement. (Dkt. No. 338.) Defendant's motion to bifurcate trial is granted in part and denied in part. (Dkt. No. 356.) Th e jury shall determine liability, availability and amount of compensatory damages, and availability of punitive damages in the first phase and, if necessary, amount of punitive damages in the second phase. Plaintiff may refer to punitive damages i n the first phase, and the only evidence excluded from the first phase shall be evidence of Defendant's financial condition. It is so ordered. Signed by Judge Marvin E. Aspen on 10/11/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CALVIN O. TANKESLY, JR.,
Plaintiff,
v.
KAREN ORTON,
Defendant.
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3:14 C 911
Hon. Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
Calvin O. Tankesly, Jr. filed this 42 U.S.C. § 1983 action against Defendant Karen Orton,
a nurse who provided medical care at the correctional facility where Plaintiff was a former
inmate. Plaintiff alleges Defendant violated his Eighth Amendment rights under the United
States Constitution through deliberate indifference to his medical needs during his cancer
treatment and recovery. Presently before us are Plaintiff’s motion in limine, Defendant’s nine
motions in limine, and Defendant’s motion to bifurcate the trial. (Dkt. Nos. 330–39, 356.)
STANDARD OF REVIEW
“A district court’s inherent authority to manage the course of its trials encompasses the
right to rule on motions in limine.” Highland Capital Mgmt., L.P. v. Schneider,
551 F. Supp. 2d 173, 176–77 (S.D.N.Y. 2008) (citing Luce v. United States, 469 U.S. 38, 41 n.4,
105 S. Ct. 460, 463 (1984)). “The Federal Rules of Evidence, the Federal Rules of Criminal and
Civil Procedure and interpretive rulings of the Supreme Court and this court all encourage, and
in some cases require, parties and the court to utilize extensive pretrial procedures—including
motions in limine—in order to narrow the issues remaining for trial and to minimize disruptions
at trial.” United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999). Because a ruling on a
motion in limine is “subject to change as the case unfolds,” this ruling constitutes a preliminary
determination in preparation for trial. Luce, 469 U.S. at 41, 105 S. Ct. at 463; United
States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994).
The decision to bifurcate trial lies within the district court’s discretion. Specialty
Minerals, Inc. v. Dunbar Mech., Inc., 164 F. App’x 539, 541 (6th Cir. 2005); In re Beverly Hills
Fire Litig., 695 F.2d 207, 216 (6th Cir. 1982). “For convenience, to avoid prejudice, or to
expedite and economize, the court may order a separate trial of one or more separate issues . . . .”
Fed. R. Civ. P. 42(b). See also Saxion v. Titan-C-Mfg., Inc., 86 F.3d 553, 556 (6th Cir. 1996)
(“A district court may bifurcate a trial ‘in furtherance of convenience or to avoid prejudice, or
when separate trials will be conducive to expedition and economy.’” (quoting
Fed. R. Civ. P. 42(b)). However, bifurcation is “not to be the usual course” and is advisable only
when the court “believes that separation will achieve the purposes of the separate trial rule.”
Wright & Miller, Federal Practice and Procedure § 2888 at 96 (3d ed. 2008).
ANALYSIS
Plaintiff brings one motion in limine, which Defendant opposes. Defendant in turn
brings nine motions in limine, to which Plaintiff has responded. In addition, Defendant moves to
bifurcate the trial. We address each motion below.
I.
PLAINTIFF’S MOTION IN LIMINE
Plaintiff’s sole motion in limine seeks to prevent Defendant from introducing evidence of
Plaintiff’s two consecutive life sentences and the convictions and conduct that led to those
sentences. (Pl.’s Mot. (Dkt. No. 330).) Plaintiff has been in prison since 1997 when he was
sentenced to two life terms without parole for rape of a child, attempted rape of a child, and
attempted aggravated battery. (See Dkt. No. 354–1.) Plaintiff argues that the nature of these
crimes is “so abhorrent” that their disclosure to the jury would cause substantial prejudice and
2
mislead the jury. (Pl.’s Mot. at 1; Mem. in Support of Pl.’s Mot. (“Mem.”) (Dkt. No. 330–1)
at 2–3.) Plaintiff seeks to limit references used to describe him at trial to “convicted felon,
inmate, prisoner, or any other generic nomenclature for one incarcerated.” (Pl.’s Mot. at 2.)
Federal Rule of Evidence 609(a)(1) provides that in a civil case, evidence of a felony
conviction “must be admitted, subject to Rule 403” for the purpose of “attacking a witness’s
character for truthfulness by evidence of a criminal conviction.” Under Rule 403, a court “may
exclude relevant evidence if its probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Per Rule 403,
we must balance the probative value of the conviction evidence against its prejudicial potential,
and the “decision whether to admit prior convictions for impeachment is committed to the
discretion of the district court . . . .” United States v. Gaitan-Acevedo, 148 F.3d 577, 591
(6th Cir. 1998).
There is no question that the fact of Plaintiff’s status as a convicted felon is admissible.
Fed. R. Evid. 609(a) (evidence of prior felony conviction “must be admitted” unless substantially
outweighed by unfair prejudice per Rule 403). Plaintiff does not dispute the jury will hear he is
in the custody of the state and he received his care through a state prison, South Central
Correctional Facility (“SCCF”). Plaintiff further concedes that references to him as a “convicted
felon, inmate, prisoner,” or other terms for someone incarcerated are proper. (Pl.’s Mot. at 2.)
Thus, the fact that Plaintiff is a convicted felon will be known to the jury. See Donald v. Wilson,
847 F.2d 1191, 1198 (6th Cir. 1988), abrogated on other grounds, Green v. Brock Laundry
Mach. Co., 490 U.S. 504, 525–26, 109 S. Ct. 1981, 1993 (1989) (finding of reduced prejudice of
conviction evidence “influenced by the fact that the jury already knew the plaintiff was a
3
convicted felon as the entire scenario unfolds in a jail”); Moore v. Parker, No. 5:13-CV-00081,
2016 WL 6871264, at *2 n.1 (W.D. Ky. Nov. 21, 2016) (recognizing Donald as good law).
Disclosure of Plaintiff’s term of sentence, number of convictions, and nature of crimes,
however, poses more difficult questions when balancing under Rule 403. Defendant opposes
Plaintiff’s motion, urging that the nature and seriousness of Plaintiff’s crimes are essential to
allow the jury to assess his credibility. (Resp. (Dkt. No. 354) at 2–3.) Defendant argues that sex
crime convictions are “especially probative” of a witness’s truthfulness in a case where “the
central difference” pits the Plaintiff’s credibility against the Defendant’s. (Id.) Plaintiff would
have us exclude all of these facts because their admission would make him out to be a “monster,
full of evil, deserving no mercy” before a jury called to decide a case of a felon against
healthcare providers who administered life-saving cancer treatment. (Mem. at 1–2.)
The animating rationale behind Rule 609(a) is “the ‘proposition that one who has
transgressed society’s norms by committing a felony is less likely than most to be deterred from
lying under oath.’” King Joseph X v. Liberty Mut. Grp., Inc., No. 3:16 C 642, 2018 WL 691709,
at *2 (W.D. Ky. Feb. 1, 2018) (quoting Cummings v. Malone, 995 F.2d 817, 826
(8th Cir. 1993)). However, “an appropriate case might exclude the names of specific crimes
under Rule 403.” Cummings, 995 F.2d at 826.
We believe “this is a close case” and, in balancing the equities, we weigh each piece of
evidence accordingly. Thomas v. McDowell, No. 2:10 CV 152, 2014 WL 5305501, at *7
(S.D. Ohio Oct. 15, 2014) (allowing basic conviction evidence but remarking that the balancing
“is a close case”); see also, e.g., Moore, 2016 WL 6871264, at *2–3 (allowing basic conviction
evidence but excluding substance or details of those convictions or references to plaintiff’s status
as a “death row” inmate). On the one hand, Plaintiff’s main evidence appears to rely primarily
on his testimony, making his credibility of “central” importance. (Resp. at 3.) The jury is
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entitled to assess the seriousness of Plaintiff’s crimes in determining his credibility and may do
so through impeachment evidence of Plaintiff’s term of years and number of convictions.
See, e.g., Cummings, 995 F.2d at 826 (finding number of convictions important to assess
credibility).
The nature of Plaintiff’s crimes, on the other hand, poses a higher risk of serious
prejudice without adding much to the jury’s credibility determination. Plaintiff’s claims arise out
of his bout with cancer, radiation therapies, and recovery while in state custody. These claims
are wholly distinct from the reason he is incarcerated. We agree with Plaintiff that disclosure of
the nature of his convictions would likely distract the jury from the narrow claims that are left for
trial. See United States v. Ford, 17 F.3d 1100, 1103 (8th Cir. 1994) (upholding district court’s
determination that disclosure of witness’s sexual offense “might inflame the jury” and “could
easily . . . distract[] the jury from its task without adding any real probative information to their
deliberations”). What is more, we are not convinced that the nature of Plaintiff’s crimes would
significantly aid the jury in assessing Plaintiff’s credibility. See Christmas v. Sanders,
759 F.2d 1284, 1292 (7th Cir. 1985) (finding the district court “correctly noted that a conviction
for rape was not highly probative of credibility”). On balance, any probative value of disclosing
the nature of the Plaintiff’s crimes or their details is substantially outweighed by the danger of
unfair prejudice. See, e.g., Corning v. MTD Prod., Inc., No. C17-120, 2018 WL 1365822,
at *1–2 (W.D. Wash. Mar. 16, 2018) (excluding child rape conviction and status as registered
sex offender, but allowing fact of prior convictions for impeachment).
Accordingly, for the foregoing reasons, Plaintiff’s motion in limine is granted in part and
denied in part. We grant Plaintiff’s motion insofar as Defendant is precluded from introducing
evidence of the nature of Plaintiff’s convictions or their details. However, Plaintiff’s motion is
denied as to Plaintiff’s term of incarceration or number of convictions, which shall be allowed
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into evidence. We will also allow Defendant to refer to Plaintiff as a convicted felon, prisoner,
inmate, or other term for a person who is incarcerated.1 “Of course, if Plaintiff opens the door to
the details or identities of his prior convictions, then Defendant[] should be permitted to
introduce evidence regarding the same.” Corning, 2018 WL 1365822, at *1.
II.
DEFENDANT’S MOTIONS IN LIMINE
A.
Defendant’s Motions in Limine One and Eight
Defendant’s Motion in Limine No. 1 seeks to exclude evidence about the care Plaintiff
received (or allegedly failed to receive) from providers other than Defendant during the relevant
timeframe. (Dkt. No. 331.) Specifically, Defendant moves to prevent Plaintiff from introducing
evidence about any medical care he received prior to his cancer diagnosis or against dismissed
defendants in Plaintiff’s suit, including SCCF, where Plaintiff was formerly housed, or
CoreCivic (formerly Corrections Corporation of America), the Defendant’s employer. (Id. at 1.)
Defendant argues such evidence is irrelevant, will confuse the jury, and will substantially
prejudice her because the Court dismissed all claims arising out of Plaintiff’s care before his
cancer diagnosis and all defendants named in Plaintiff’s complaint except Defendant Orton.
(Id. at 1–3 (citing Fed. R. Evid. 401–03).)
Likewise, Defendant’s Motion in Limine No. 8 seeks to exclude evidence about aspects
of Plaintiff’s medical care that Defendant argues were beyond her control or that occurred
without her personal involvement. (Dkt. No. 338.) Defendant asserts that evidence, for
example, that doctors provided inadequate prescriptions to Plaintiff or that nutrition supplements
1
Defendant also seeks to admit evidence of Plaintiff’s conviction because it would allow the jury
to assess Plaintiff’s claim for mental damages by comparing the “loss of dignity” he suffered
from his life sentence to that which he claims to have suffered under Defendant’s care.
6
were in short supply during prison lockdowns were beyond Defendant’s purview and, thus,
irrelevant to proving Plaintiff’s claims.2 (Id. at 1–2.)
In response, Plaintiff accedes to several of Defendant’s points. Plaintiff agrees that the
trial is limited to “just” the Defendant’s alleged deliberate indifference and “only” matters
occurring after Plaintiff’s cancer diagnosis. (Dkt. No. 345 at 1.) Plaintiff also recognizes that “a
nurse cannot control lockdowns where movement is restricted in correctional facilities because
of safety issues.” (Dkt. No. 353 at 1.) However, Plaintiff argues that he should be able to
“reference” SCCF, CoreCivic, and “seeing and interacting with other caregivers, guards, or
inmates within the physical proximity” of his interactions with Defendant. (Dkt. No. 345 at 1.)
Plaintiff argues that he should be permitted to testify that he has personally witnessed nurses
distribute or withhold medication or supplements from inmates. (Dkt. No. 353 at 1.) He also
contends he should be allowed to introduce evidence that nurses may order medications or
supplements or manage their distribution, presumably for the purpose of showing that Defendant
did control these aspects of Plaintiff’s care. (Id.)
“Evidence is relevant if it (a) has any tendency to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence in determining the action.”
Fed. R. Evid. 401. Although irrelevant evidence should be excluded, Fed. R. Evid. 402, “the
relevance threshold is very low under Rule 401.” United States v. Whittington,
455 F.3d 736, 739 (6th Cir. 2006).
The matters remaining in this case are narrow. The only question is whether Defendant
acted with deliberate indifference toward Plaintiff after he was diagnosed with cancer in April or
May 2013 and before he went into remission in February 2014. (Summ. J. Op. (Dkt. No. 309)
2
Although Defendant does not cite a Federal Rule of Evidence as grounds for excluding the
evidence of medical care outside of Defendant’s control, her argument reduces to one of
relevance. Thus, we will apply the standards under Rules 401 and 402.
7
at 11, 15, 42.) Given Plaintiff does not oppose Defendant’s motion to bar him from introducing
evidence to show mistreatment or deliberate indifference toward him either by persons other
than Defendant, or by any person before his cancer diagnosis, we grant Defendant’s Motion in
Limine No. 1. However, it may be impossible for Plaintiff to avoid referring to other persons or
entities that may at one time have been named as defendants, like where he lived (SCCF) or
other providers (who may have worked for CoreCivic) who were present when he received care
from Defendant. While Plaintiff thus may incidentally reference previously dismissed
defendants, he may not relitigate claims or parties this Court has already dispensed with, nor may
he reference his prior suits against them. See Cooper v. Montgomery Cty., Ohio, No. 3:13 C 272,
2018 WL 272523, at *3 (S.D. Ohio Jan. 2, 2018) (granting defendant’s motion to exclude
evidence of dismissed claims as irrelevant and presenting substantial danger of unfair prejudice);
Moore v. Bannon, No. 10-12801, 2012 WL 2154274, at *7 (E.D. Mich. June 13, 2012)
(recognizing the “common practice” of excluding dismissed claims and issues).
As to Defendant’s Motion in Limine No. 8, we largely agree that evidence of matters
outside Defendant’s control are irrelevant to Plaintiff’s claims. Conversely, evidence that
Defendant controlled (i.e., could act upon or omit) aspects of Plaintiff’s cancer and recovery care
is relevant. Reilly v. Vadlamudi, 680 F.3d 617, 624 (6th Cir. 2012) (Eighth Amendment claim
requires demonstrating “‘acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs’” (quoting Estelle v. Gamble, 429 U.S. 97, 106,
97 S. Ct. 285, 292 (1976)). Plaintiff should not pursue argument at trial that seeks to implicate
Defendant in a wider web of misfortunes, such as prison lockdowns, that are plainly outside
Defendant’s control. However, as we will better be able to assess the relevance of this type of
evidence when specific instances arise, we will take Defendant’s Motion in Limine No. 8 under
advisement at this time.
8
B.
Defendant’s Motions in Limine Two and Five
Defendant brings two motions seeking to prevent evidence that she argues would amount
to improper expert testimony. Defendant’s Motion in Limine No. 2 seeks to prevent Plaintiff
from testifying as to the applicable medical standard of care, the medical care Plaintiff believes
he should have received, or medical causation. (Dkt. No. 332 at 1.) Defendant argues that
medical causation requires a medical expert qualified under Rule of Evidence 702, and that
Plaintiff has improperly tried to offer such medical evidence throughout the litigation.
(Id. at 1–2.) Defendant’s Motion in Limine No. 5 argues Plaintiff should be barred from offering
evidence that the policies, procedures, or customs of CoreCivic or SCCF were “inappropriate” or
demonstrate deliberate indifference toward Plaintiff. (Dkt. No. 335 at 1.) Defendant contends
that the appropriateness of prison policies or procedures can be assessed only by a qualified
expert and, in any event, is irrelevant to Plaintiff’s claims. (Dkt. 335 at 1–2.)
Plaintiff responds to both motions that he may testify to what he witnessed, perceived,
and experienced, while acknowledging that he is neither a “medical care expert” nor responsible
for prison policies. (Dkt. Nos. 347, 350.) Regarding Motion in Limine No. 2, Plaintiff asserts
that his testimony is “his own proof of physical injury,” which he can relate through his own
sense perceptions and eyewitness interactions with Defendant. (Dkt. No. 347 at 1.) As for
Motion in Limine No. 5, Plaintiff argues that he should be able to testify to his experiences with
prison policies during his decades as an inmate. (Dkt. No. 350.) In addition, Plaintiff asserts
counsel will instruct Plaintiff not to assume specialized knowledge of what is appropriate in a
correctional setting. (Id.)
As a lay witness, Plaintiff may testify to what he personally witnessed and experienced
through his perceptions if helpful to clearly understand his testimony or to determine a fact in
issue, so long as his testimony is not based on specialized knowledge. Fed. R. Evid. 701.
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Plaintiff is competent to testify to his “personal observations of injuries or symptoms that are
within the common realm of knowledge” during his cancer care and recovery. McDonald v. City
of Memphis, No. 2:12 C 2511, 2016 WL 8201168, at *5 (W.D. Tenn. Aug. 26, 2016); see also
Jama v. City of Memphis, No. 03-2965, 2006 WL 5499283, at *3 (W.D. Tenn. Dec. 29, 2006)
(lay witness competent to testify that a laceration was caused by a sharp object, but not causation
of non-obvious ailments). However, testimony about the applicable or appropriate medical
standard of care would require the “scientific, technical, or other specialized knowledge” of a
qualified expert. Fed. R. Evid. 701(c); see Simpson v. Bredesen, No. 2:10 C 02950,
2015 WL 5655999, at *6 (W.D. Tenn. Sept. 24, 2015) (incarcerated plaintiff not an expert on
adequacy of medical training). As Plaintiff is not a medical expert, his testimony may not reflect
opinions on proper medical standards or appropriate care. Likewise, as a lay witness, Plaintiff is
not generally qualified to draw connections between treatment he was prescribed or received and
its effects. See United States v. Lang, 717 F. App’x 523, 537 (6th Cir. 2017), cert. denied,
138 S. Ct. 1179 (2018) (doctor called as lay witness permitted to testify about facts and treatment
of patient, but not the connection between the two, i.e., “why treatment was medically necessary
or appropriate”); see also Cooper, 2018 WL 272523, at *3 (lay witness permitted to testify to
physical changes experienced and observed, but not to draw conclusion that sleep deprivation
caused them); McDonald, 2016 WL 8201168, at *5 (observing “limits” to lay testimony on
medical causation, which usually requires a medical expert). We thus grant Defendant’s Motion
in Limine No. 2. (Dkt. No. 332.) Plaintiff is barred from offering testimony as to the applicable
medical standard of care, the medical care Plaintiff believes he should have received, or medical
causation. However, Plaintiff may testify to his own experiences and sensations.3
3
Defendant’s Motion in Limine No. 2 also seeks to bar Plaintiff from testifying that Defendant
caused Plaintiff’s injuries because Plaintiff did not specifically attribute any harm to Defendant
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As for Defendant’s Motion in Limine No. 5, we have already determined that evidence
may not be offered against dismissed defendants, including CoreCivic and SCCF, to show that
they mistreated or showed deliberate indifference toward Plaintiff. This includes evidence
concerning those entities’ policies, procedures, or customs. Plaintiff has offered no reason why
such evidence would be relevant to proceedings focused on the sole remaining Defendant. We
therefore grant Defendant’s Motion in Limine No. 5 to prevent Plaintiff from introducing
evidence that CoreCivic or SCCF’s policies, procedures, or customs were “inappropriate” or
demonstrated deliberate indifference toward Plaintiff or other inmates. (Dkt. No. 335.)
C.
Defendant’s Motion in Limine Three
Defendant’s Motion in Limine No. 3 requests we bar evidence of (1) healthcare provided
(or not) to other inmates; and (2) evidence of grievances, complaints, or lawsuits filed by other
inmates involving Defendant, CoreCivic, or SCCF. (Dkt. No. 333 at 1.) Defendant asserts that
these two categories of evidence are irrelevant, amount to impermissible character evidence,
should not be allowed to establish evidence of Defendant’s habit or custom, and constitute
improper expert testimony. (Id. at 2–3.)
Plaintiff largely agrees that he “must not speak for others,” will “speak of his own
grievances,” and “knows to not bring up the lawsuits of others in the past as proof of his own
claims of injury.” (Dkt. No. 348 at 1.) Plaintiff’s sole objection to Defendant’s motion seeks to
preserve Plaintiff’s ability to testify about Defendant’s habits in dealing with Plaintiff.
(Id. at 1–2.)
in an interrogatory filed in discovery. (Dkt. No. 332 at 3–4.) This argument is unavailing.
Although Defendant may use the interrogatory response as impeachment material, Plaintiff does
not waive the right to testify to these matters at trial because of an inconsistent interrogatory
given in discovery. See Walker v. Mulvihill, 83 F.3d 423 (table), 1996 WL 200288, at *4
(6th Cir. 1996) (district court erred by failing to admit inconsistent interrogatory as impeachment
material); Freed v. Erie Lackawanna Ry. Co., 445 F.2d 619, 621 (6th Cir. 1971) (interrogatory
answer is not an admission binding on the trier of fact).
11
Federal Rule of Evidence 406 allows evidence of habit or routine practice to be admitted
“to prove that on a particular occasion the person or organization acted in accordance with the
habit or routine practice.” Fed. R. Evid. 406. “[T]he offering party must establish the degree of
specificity and frequency of uniform response that ensures more than a mere ‘tendency’ to act in
a given manner, but rather, conduct that is ‘semi-automatic’ in nature.” Infocision Mgmt.
Corp. v. Found. for Moral Law Inc., No. 5:08 CV 1342, 2011 WL 3022002, at *4
(N.D. Ohio July 22, 2011) (quoting Simplex, Inc. v. Diversified Energy Sys., Inc.,
847 F.2d 1290, 1293 (7th Cir. 1988)). Evidence of less than a habit—that is, a tendency or
isolated acts—is not admissible to show conformity with that tendency, but may be used to show
something else, “such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2); 404(a) (prohibiting character
evidence to show conformity); 404(b)(1) (prohibiting evidence of past acts to show conformity).
Plaintiff provides no detail as to how his testimony would show that Defendant’s actions
with others amounted to a nearly automatic, specific, frequent, and uniform response to the same
stimuli. See Infocision, 2011 WL 3022002, at *4 (burden of demonstrating habit rests with
proponent (citing Weil v. Seltzer, 873 F.2d 1453, 1460–61 (D.C. Cir. 1985)). Absent habit
evidence, Plaintiff’s examples may show only a tendency of Defendant to act a certain way. But
Plaintiff may not use Defendant’s tendencies toward other inmates to show that she acted
likewise with Plaintiff. Fed. R. Evid. 404(a), (b)(1). Plaintiff makes no argument that any
permissible reasons to admit such evidence apply in this case, and we can think of none. See
Houchins v. Jefferson Cty. Bd. of Educ., No. 3:10-CV-147, 2013 WL 811723, at *1–2
(E.D. Tenn. Mar. 5, 2013) (preventing plaintiff in sexual harassment suit from offering five other
witnesses who claimed similar conduct from defendant under both Rules 406 and 404).
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As Plaintiff agrees to all aspects but one of Defendant’s Motion, and Plaintiff’s sole
objection is unavailing, we grant Defendant’s Motion in Limine No. 3. Plaintiff should not
introduce evidence of other inmates’ medical treatment or complaints, grievances, or lawsuits
filed by other inmates against Defendant or other entities.
D.
Defendant’s Motion in Limine Four
Defendant’s Motion in Limine No. 4 seeks to exclude out-of-court statements made by
Dr. Robert Coble or any other CoreCivic personnel regarding their opinions or observations of
Defendant’s care of Plaintiff. (Dkt. No. 334 at 1.) Plaintiff argues he may reference documents
“he saw with Dr. Coble, related to CoreCivic or SCCF, or other hospitals where [Plaintiff] went”
and may “reference seeing and interacting with other caregivers, guards, or inmates and
documents he may have seen in their proximity.” (Dkt. No. 349 at 1–2.) Plaintiff also wishes to
preserve the right to present documents for impeachment purposes should the need arise under
Federal Rules of Evidence 607, 608, 612, and 613. (Id. at 1.)
Rule 801(c) defines hearsay as any 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(c). Hearsay evidence is inadmissible
unless an exception applies by statute or other rule. Fed. R. Evid. 802. Out-of-court statements
not offered to prove the truth of their contents are not hearsay. Biegas v. Quickway Carriers,
Inc., 573 F.3d 365, 379 (6th Cir. 2009); King v. Hamblen Cty. Bd. of Educ., No. 2:14 CV 00249,
2016 WL 9175508, at *8 (E.D. Tenn. June 8, 2016). For example, a statement offered not for its
truth but for its “effect on the listener is not hearsay.” Biegas, 573 F.3d at 379. Statements not
excluded from the hearsay rule may still fall under an exception to allow admissibility.
Fed. R. Evid. 803 (listing exceptions).
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Plaintiff specifies no hearsay exclusion or exception that would allow substantive
testimony about “documents he saw with Dr. Coble” or related to CoreCivic, SCCF, or other
hospitals he visited. (Dkt. No. 349 at 1.) We too are hard-pressed to find any that may apply.
However, Plaintiff argues certain out-of-court statements may be used to impeach
Defendant’s witnesses. (Dkt. No. 349 at 1.) Since Defendant intends to call Dr. Coble to testify
(see Def.’s Witness List (Dkt. No. 367 at 1)), Plaintiff may have occasion on cross-examination
to refresh Dr. Coble’s memory through writings that would otherwise be hearsay. See
Fed. R. Evid. 612; Rush v. Illinois Cent. R. Co., 399 F.3d 705, 716 (6th Cir. 2005) (permitting a
writing to refresh witness’s memory in district court’s discretion and describing proper
procedures). Plaintiff may also have opportunity to impeach Dr. Coble through inconsistent
statements made in declarations he has filed under penalty of perjury in this case
(Dkt. Nos. 42, 148–1).
We agree with Defendant that referencing out-of-court documents Plaintiff saw with Dr.
Coble or related to CoreCivic, SCCF, or other hospitals are inadmissible hearsay without an
exception and will not be allowed at trial in Plaintiff’s affirmative case. However, as Plaintiff
may have occasion to use out-of-court statements for impeachment or cross-examination, we will
take Defendant’s motion under advisement insofar as Plaintiff may argue for the use of such
statements in specific cases. Defendant’s motion is thus granted in part and taken under
advisement in part.
E.
Defendant’s Motion in Limine Six
Defendant’s Motion in Limine No. 6 seeks to preclude Plaintiff from offering evidence
comparing the treatment he received from Defendant to the care he received or is receiving at
“other facilities,” from “other third party medical providers,” or from other SCCF nurses.
(Dkt. No. 336 at 1.) For example, Defendant argues we should exclude evidence that she
14
showed an ill motive when she, unlike other nurses, refused Plaintiff his medication at the
pill-call window until he returned with his identification. (Id.) Defendant argues that these
categories of evidence are irrelevant to proving Plaintiff’s claims and that comparing Defendant
to other providers would allow Plaintiff to present an improper medical opinion. (Id. at 2.)
Plaintiff responds that he will testify to what he personally witnessed or experienced,
including “his experiences with Defendant Orton and other caregivers throughout his life.”
(Dkt. No. 351 at 1.) Plaintiff also argues that under Rule 701, he may offer a lay opinion
comparing the ways he has been treated medically, socially, or physically, including “comparing
one instance where he was given comfort and where he was not.” (Id.)
Plaintiff’s deliberate indifference claim may involve showing that Defendant
“intentionally interfer[ed] with the treatment” he had been prescribed. Estelle, 429 U.S. at 105,
97 S. Ct. at 291. Part of that inquiry includes whether Defendant “subjectively perceived” a
“substantial risk” to Plaintiff that she then disregarded. Comstock v. McCrary,
273 F.3d 693, 703 (6th Cir. 2001). Plaintiff may demonstrate Defendant’s subjective perceptions
“in the usual ways, including inference from circumstantial evidence.” Farmer v. Brennan,
511 U.S. 825, 842, 114 S. Ct. 1970, 1981 (1994). As such, evidence of Defendant’s knowledge
of the care Plaintiff received from other providers, or of the orders given for care of Plaintiff’s
serious medical needs, may be probative. For example, Plaintiff’s testimony that other providers
dispensed nutritional supplements to Plaintiff in Defendant’s presence may be probative to show
Defendant’s subjective perceptions of the care he was supposed to receive. Likewise, per
Rule 701, a witness may offer an opinion if his testimony is “(a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact
in issue; and (c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702 [expert testimony].” Fed. R. Evid. 701. To the extent Plaintiff’s testimony is
15
based on his own perceptions and related to the knowledge Defendant may have had or inferred
from Plaintiff’s interactions with other providers, that evidence will be allowed.
However, mere comparisons between the care Plaintiff received from Defendant and the
care he received from other medical providers, past or current, would not be probative of
whether Defendant acted with “deliberate indifference” toward Plaintiff. As Defendant correctly
asserts, Plaintiff’s claim is not for negligence. (Dkt. No. 336 at 3.) To the degree that such
evidence would be used to show simply that Plaintiff received better or more consistent care
from other people, it should be excluded as irrelevant. We therefore grant in part this portion of
Defendant’s Motion.
As for the portion of Defendant’s Motion that seeks to exclude Defendant’s actions
toward Plaintiff at the pill-call window, we think that a jury could find this incident probative of
whether Defendant “intentionally interfer[ed] with the treatment once prescribed,” Estelle,
429 U.S. at 105, 97 S. Ct. at 291. Plaintiff should be free to present evidence to prove these
facts, should he choose, and this portion of Defendant’s Motion is denied.
F.
Defendant’s Motions in Limine Seven and Nine
Plaintiff generally agrees to two of Defendant’s motions in limine. One, Defendant’s
Motion in Limine No. 7, would exclude evidence that Defendant filed a false disciplinary report
against Plaintiff or caused Plaintiff to lose his prison job. (Dkt. No. 337 at 1.) Plaintiff agrees
that he “should not speak of any false disciplinary reports or retaliation by Defendant, unless
they are within the timeframe of the claim before the jury.” (Dkt. No. 352.) Plaintiff’s previous
allegations regarding retaliation or disciplinary reports fall outside the relevant timeframe.
(Dkt. No. 13 ¶¶ 16–17 (employment action in May 2014); see also Dkt. No. 19 ¶ 29 (alleged
false disciplinary report in June 2014).) Seeing no material disagreement, we grant Defendant’s
Motion in Limine No. 7.
16
Defendant’s Motion in Limine No. 9 is likewise uncontested. Defendant seeks to bar
evidence concerning employment actions, evaluations, complaints or discipline against
Defendant. (Dkt. No. 339 at 1.) Specifically, she objects to Plaintiff’s attempts throughout
discovery to submit evidence of other inmates’ complaints, suits, and grievances against
Defendant. (Id. at 2.) Plaintiff concedes in response that he will not refer to lawsuits or
grievances filed against Defendant except for his own in the relevant time period, May 2013
through February 2014. (Dkt. No. 355.) As the parties agree to these limitations, we grant
Defendant’s Motion in Limine No. 9.
III.
DEFENDANT’S MOTION TO BIFURCATE
Defendant next moves to bifurcate the trial into two phases. (Dkt. No. 356 at 1.)
Defendant proposes that during the first phase of trial, the jury should consider whether
Defendant is liable, and if so, whether compensatory damages should be awarded and in what
amount. (Id.) Defendant asserts the second phase of trial, if necessary, will determine the
amount of punitive damages. (Id.) Defendant simultaneously moves to preclude Plaintiff from
offering evidence of Defendant’s personal financial condition as “evidence of punitive damages”
during the first proposed phase of trial. (Id. at 2–3.) Defendant argues that Defendant’s financial
situation is “highly personal and confidential,” and admission of such evidence would cause
unfair prejudice or confuse the jury. (Id.) Plaintiff does not object to bifurcating the trial as
Defendant proposes. (Dkt. No. 362 at 1.)
The parties’ agreement, however, does not end our inquiry. The decision to try issues in
separate proceedings must advance the goals of convenience, expeditiousness, economy, or
avoiding prejudice. Fed. R. Civ. P. 42(b). Although the parties fail to specify what goals
bifurcation would advance in this case, their agreement to bifurcate suggests at a minimum that it
would be convenient for them to adopt this format. We also agree that bifurcation has the
17
potential to economize proceedings: if the jury finds in the first phase that Defendant is not
liable, the need to present evidence going only to the amount of punitive damages would be
avoided entirely. See, e.g., Gilbert v. State Farm Mut. Auto. Ins. Co., 311 F.R.D. 685, 687
(M.D. Fla. 2015) (bifurcating liability and damages phases to avoid spending “additional time
presenting evidence on Plaintiff's damages in the event Plaintiff is barred from recovery”).
In addition, Defendant’s argument is well taken that presenting her financial affairs
before she is found liable may prejudice her before the jury. (See Dkt. No. 356 at 2.) Evidence
of a defendant’s financial condition is not relevant to either the liability or compensatory
damages determinations and may instead mislead the jury on those inquiries.
Vasbinder v. Ambach, 926 F.2d 1333, 1344 (2nd Cir. 1991); Rotello v. Clayton Homes of
Del., Inc., No. 303CV-573, 2006 WL 842931, at *1 (E.D. Tenn. Mar. 28, 2006) (finding that “a
single trial including both liability for and amount of punitive damages would be unduly
prejudicial . . . and potentially confusing to the jury”). Although this case sounds in federal law,
we find persuasive authority in the common practice of the state in which we sit, which will
bifurcate as a matter of course when punitive damages are possible. Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 (Tenn. 1992) (mandating bifurcation upon defendant’s motion when
punitive damages are sought). In Tennessee, trials are routinely split into a first phase to
determine liability, compensatory damages, and entitlement to punitive damages, and a second
phase to determine amount of punitive damages. Id. Only during the second phase is evidence
of a defendant’s financial affairs, condition, or net worth admissible. Id.; see also Werner v. Bell
Family Med. Ctr., Inc., No. 3:09 C 0701, 2012 WL 1514872, at *4 (M.D. Tenn. May 1, 2012)
18
(deferring consideration of defendant’s financial affairs until second phase of bifurcated trial).
Defendant proposes, without objection, precisely this model.4
We thus elect to exercise our discretion to grant bifurcation in this case. As proposed by
the parties, during the first phase of trial, the jury will be instructed to decide Defendant’s
liability, the liability and amount of compensatory damages, and liability for (but not amount of)
punitive damages. No evidence of Defendant’s net worth or financial position, condition, or
affairs shall be allowed to enter into evidence in the first phase of trial. If the jury determines
punitive damages are warranted, the parties may present additional evidence as to the amount of
punitive damages during the second phase of trial, and the jury will then be called to determine
the award. If Defendant wishes for the jury to consider a lower punitive damage award due to
her inability to pay, the burden is on her to show evidence of her limited financial means during
the second phase of trial. Johnson v. Howard, 24 F. App’x 480, 488 (6th Cir. 2001). To avoid
any additional delay, the parties should be prepared to proceed to the punitive damages phase
immediately after the jury returns a verdict on the first phase, if necessary. Werner,
2012 WL 1514872, at *4 (citing Hodges, 833 S.W.2d at 901).
Although we grant bifurcation, Defendant’s motion also seeks to bar Plaintiff from
introducing other evidence that might impact the eventual amount of punitive damages during
the first phase of trial. (Dkt. No. 356 at 1.) Defendant’s request is broad and would exclude any
reference to punitive damages during the first phase of trial, including during opening
statements. (Id. at 3.) Defendant argues that evidence of punitive damages in any part of the
4
Although Defendant is silent as to when the jury would determine liability for punitive
damages, she has submitted a proposed verdict form that would have the jury simultaneously
determine Defendant’s liability, amount of compensatory damages, and Plaintiff’s entitlement to
punitive damages. (Dkt. No. 373.) Defendant also suggests a punitive damage jury instruction
to be given at the end of the first phase of trial. (Dkt. No. 381 at 1.) We thus assume that
entitlement to punitive damages would be determined in the first phase under Defendant’s
proposal.
19
first phase would be “irrelevant” before the jury finds Defendant liable. (Id. at 3.) Plaintiff
strongly objects to a bar on discussing punitive damages, arguing that he is entitled to seek
punitive damages in this case and that the facts presented in the first phase of trial would
necessarily go to whether Defendant’s conduct reached the requisite standard to award punitive
damages.5 (Dkt. No. 362 at 1–2.)
Plaintiff is correct that punitive damages are available in cases brought under
42 U.S.C. § 1983. Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640 (1983);
King v. Zamiara, 788 F.3d 207, 216 (6th Cir. 2015). In assessing liability for punitive damages,
the jury must determine whether a defendant’s conduct evinced “evil motive and intent,”
“callous indifference,” or “reckless disregard of the plaintiff’s rights.” King, 788 F.3d at 216.
Neither Plaintiff nor the Court can be expected to parse which evidence of Defendant’s conduct
might speak only to Defendant’s deliberate indifference to Plaintiff’s rights, to be addressed in
the first phase of trial, and Defendant’s “callous indifference” or “reckless disregard” of those
rights, to be addressed second, as Defendant proposes. Estelle, 429 U.S. at 104, 97 S. Ct. at 291;
King, 788 F.3d at 216. Indeed, the jury will be called upon at the end of the first phase to decide
whether punitive damages are appropriate, and both Plaintiff and Defendant have filed jury
instructions calling for an instruction on punitive damages to be given at the end of this first
phase. (Dkt. Nos. 378, 381.)
Because the jury will be asked to determine the availability of punitive damages
simultaneous with liability and compensatory damages, we deny the portion of Defendant’s
motion that would bar all reference to punitive damages in the first phase of trial.
5
Plaintiff also argues that punitive damages would be appropriate to deter Defendant’s
employer, CoreCivic, from similar conduct in the future. (Dkt. No. 362 at 2.) However, only
Defendant Orton’s conduct will be assessed in this trial. (Summ. J. Op. at 48.)
20
(Dkt. No. 356.) Per our order to bifurcate, the only evidence that will be reserved exclusively for
the second phase of trial will be that regarding Defendant’s financial affairs or net worth.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion in Limine is granted in part to exclude
references to the nature and details of Plaintiff’s convictions, and denied in part as to disclosure
of Plaintiff’s term of sentence, number of convictions, or status as a felon. (Dkt. No. 330.)
Defendant’s Motion in Limine Nos. 1, 2, 3, 5, 7, and 9 are granted. (Dkt. Nos. 331, 332, 333,
335, 337, 339.) Defendant’s Motion in Limine No. 4 is granted in part to exclude out-of-court
statements or documents relating to Dr. Coble, CoreCivic, SCCF, or other hospitals, and taken
under advisement in part if such statements become relevant for impeachment. (Dkt. No. 334.)
Defendant’s Motion in Limine No. 6 is granted in part to exclude comparisons between
Plaintiff’s medical care from Defendant and from other providers. (Dkt. No. 336.) It is denied
in part insofar as Plaintiff may show care from others within Defendant’s knowledge or relate his
experiences with Defendant at the pill-call window. (Id.) Defendant’s Motion in Limine No. 8
is taken under advisement. (Dkt. No. 338.)
Defendant’s motion to bifurcate trial is granted in part and denied in part. (Dkt. No. 356.)
The jury shall determine liability, availability and amount of compensatory damages, and
availability of punitive damages in the first phase and, if necessary, amount of punitive damages
in the second phase. Plaintiff may refer to punitive damages in the first phase, and the only
evidence excluded from the first phase shall be evidence of Defendant’s financial condition.
It is so ordered.
____________________________________
Marvin E. Aspen
United States District Judge
Dated: October 11, 2018
Chicago, Illinois
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