Kartman v. Markle et al
Filing
327
MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF AND DEFENDANTS MOTIONS IN LIMINE AND DENYING PLAINTIFFS MOTION TO STRIKE DEFENDANTS EXPERT WITNESS. Defendants 270 Motion in Limine to Exclude Evidence Regarding Future Damages is DENIED IN PART and GRANTED IN PART; Defendants 271 Motion in Limine to Exclude Expert Testimony Referring to the Propriety of the Defendants Actions is DENIED; Defendants 272 Motion in Limine Seeking to Proffer a Special Interrogatory to the Jury on Pre-Judgment I nterest is GRANTED AS FRAMED; Defendants 273 Motion in Limine to Exclude Evidence Regarding Claims Against Defendant Officer Skidmore is GRANTED; Defendants 274 Motion in Limine to Prohibit Evidence of Disciplinary Actions Against Officer Stancot i is GRANTED AS FRAMED; Defendants 275 Motion in Limine Regarding Claim for Punitive Damages and Motion to Bifurcate Punitive Damages Claim is GRANTED AS FRAMED; Plaintiff's 264 Motion in Limine is GRANTED IN PART and DENIED IN PART; Plaintiffs 266 Motion to Strike Defendants Expert Witness Howard Painter is DENIED. Signed by Senior Judge Frederick P. Stamp, Jr. on 6/29/2015. (copy to counsel of record via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RICHARD E. KARTMAN,
Plaintiff,
v.
Civil Action No. 5:10CV106
(STAMP)
SHANNON MARKLE, OFFICER LONG,
OFFICER STANCOTI, OFFICER SKIDMORE
and JOHN DOE MEDICAL EMPLOYEE,
Defendants.
MEMORANDUM OPINION AND ORDER
REGARDING PLAINTIFF AND DEFENDANT’S MOTIONS IN LIMINE AND
DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S EXPERT WITNESS
Pending before this Court are motions in limine filed by the
plaintiff and the defendant1 and plaintiff’s motion to strike
defendant’s expert witness, Howard Painter.
The trial in this
civil action is scheduled to commence on July 28, 2015. This Court
will address those motions in limine and set forth its findings, as
discussed below.2
Defendant’s Motions in Limine
1. Defendant’s Motion in Limine to Exclude Evidence Regarding
Future Damages (ECF No. 270) — DENIED IN PART and GRANTED IN PART.
In his first motion in limine, the defendant seeks to exclude
all evidence and testimony about future damages of the plaintiff.
1
The only remaining defendant in the civil action is defendant
Shannon Markle.
2
For a more thorough background of this civil action, see ECF
Nos. 155, 188, and 314.
The defendant argues that thus far, the plaintiff failed to present
any evidence of future damages.
In particular, the defendant
contends that the plaintiff needed to provide evidence such as
medical records, healthcare costs, and expert testimony.
The
plaintiff,
has
in
opposition
to
the
motion,
argues
that
he
proffered evidence throughout this civil action, such that a jury
should be allowed to determine future damages. Here, the plaintiff
points to his repeated lack of adequate medical attention, his
chronic ailments that affect him today, and the failure of the
defendant to implement adequate safety policies.
Future damages may be awarded to an injured party “for, among
other things: (1) Residuals or those future effects of an injury
which have reduced the capability of an individual to function as
a whole [person]; (2) future pain and suffering; (3) loss or
impairment of earning capacity; and (4) future medical expenses.”
Syl. Pt. 2, Cook v. Cook, 607 S.E.2d 353 (W. Va. 2004) (citing Syl.
Pt. 7, Jordan v. Bero, 210 S.E.2d 618, 634 (W. Va. 1974)).
In
order to allow a jury to award future damages, “[t]he permanency or
future
effect
certainty.”
of
any
injury
must
be
proven
with
reasonable
Jordan, 210 S.E.2d at syl. pt. 9; see Dowey v.
Bonnell, 380 S.E.2d 453 (W. Va. 1989).
In proving future damages,
expert witness testimony is not required when an injury “is of such
a character as to be obvious, the effects of which are reasonably
common knowledge.”
Jordan, 210 S.E.2d at 635.
2
However, if the
injury is obscure, meaning the effects of the injury “are not
readily
ascertainable,
demonstrable,
or
subject
of
common
knowledge,” then “medical or other expert opinion testimony is
required.”
Id.
Based on the case law discussed above, the defendant’s motion
is DENIED IN PART to the extent that the injuries are obvious.
Those obvious injuries may be considered by the jury and do not
require expert witness testimony.
However, to the extent that the
plaintiff wishes to present evidence of “obscure” injuries without
expert witness testimony, the defendant’s motion is GRANTED IN
PART.
This Court may consider an appropriate jury instruction
after discussing the matter with counsel at trial.
2.
Defendant’s
Motion
in
Limine
to
Exclude
Expert
Testimony
Referring to the Propriety of the Defendant’s Actions (ECF No. 271)
— DENIED.
The defendant argues that this Court should prevent the
plaintiff from presenting any evidence referring to the propriety
of the defendant’s actions.
Here, the defendant argues that the
plaintiff has only provided conclusions and allegations about the
propriety of his actions.
The defendant claims that if this Court
permits the plaintiff to present such evidence, he will face great
prejudice.
The plaintiff objects because the defendant’s motion,
according to the plaintiff, seeks to prohibit any presentation or
elicitation of any expert witness testimony regarding the propriety
3
of the defendant’s actions.
Because the plaintiff may cross-
examine the defendant’s expert witness, any elicited testimony may
directly relate to the expert’s opinion regarding the propriety of
the defendant’s actions.
Therefore, the plaintiff believes that
the defendant’s motion could limit the plaintiff’s right to crossexamine the witness.
After reviewing the defendant’s motion and the plaintiff’s
response, the defendant’s second motion in limine is DENIED.
The
plaintiff may cross-examine the defendant’s expert witness if
called, but no expert witness may be designated by the plaintiff at
this time.
See Reilly v. Pinkus, 338 U.S. 269, 275 (1949) (noting
that in the expert witness testimony context, courts should not
place “an undue restriction on the right to cross-examine”);
Lawrence v. Nutter, 203 F.2d 540, 543 (4th Cir. 1953).
3. Defendant’s Motion in Limine Seeking to Proffer a Special
Interrogatory to the Jury on Pre-Judgment Interest (ECF No. 272) —
GRANTED AS FRAMED.
In the defendant’s third motion in limine, he requests that
this Court proffer a special interrogatory to the jury regarding
pre-judgment
interest.
In
particular,
he
seeks
to
file
a
liquidated damages interrogatory for the purpose of attaching prejudgment interest.
The defendant argues that although the nature
of the plaintiff’s damages is allegedly unknown, the defendant
wants to proffer a special interrogatory in case the plaintiff
4
claims such special or liquidated damages.
The plaintiff does not
object to the defendant’s third motion in limine.
The plaintiff
does, however, seek to reserve the right to object to the language
contained in any special interrogatory that may be proffered.
Based on the position of the parties as expressed in their
filings, the defendant’s third motion in limine is GRANTED AS
FRAMED.
Accordingly, this Court will allow the defendant to
proffer a special interrogatory concerning pre-judgment interest.
However, this Court will rule on the language of such interrogatory
at the time of trial.
4. Defendant’s Motion in Limine to Exclude Evidence Regarding
Claims Against Defendant Officer Skidmore (ECF No. 273) — GRANTED.
The defendant wishes to exclude any evidence that claims that
defendant
Officer
Skidmore
towards the plaintiff.
inappropriately
conducted
himself
Here, the defendant argues that this Court
dismissed defendant Officer Skidmore, and the United States Court
of Appeals for the Fourth Circuit (“Fourth Circuit”) affirmed his
dismissal.
Further,
the
defendant
contends
that
defendant Officer Skidmore may confuse the jury.
referencing
Therefore, the
defendant requests that any reference or evidence pertaining to
Officer Skidmore be excluded from the trial. The plaintiff objects
to the extent that the defendant’s motion precludes the plaintiff
from presenting relevant evidence about the facts of his case or
for impeachment and rebuttal purposes.
5
As the defendant correctly points out, this Court granted
summary judgment in favor of Officer Skidmore.
ECF No. 98.
appeal, the Fourth Circuit affirmed that ruling.
On
ECF No. 231
(“[T]he district court correctly determined that Skidmore was
entitled to qualified immunity. Accordingly, we affirm the portion
of the district court’s order granting summary judgment in favor of
Skidmore.”). Officer Skidmore was dismissed, and that currently is
the law of this case.
This Court will not revisit that ruling as
affirmed by the Fourth Circuit.
Therefore, the defendant’s fourth
motion in limine is GRANTED.
5.
Defendant’s
Motion
in
Limine
to
Prohibit
Evidence
of
Disciplinary Actions Against Officer Stancoti (ECF No. 274) —
GRANTED AS FRAMED.
The defendant next seeks to exclude any evidence or reference
to prior disciplinary actions taken against defendant Officer
Stancoti.3
Specifically, the defendant argues that any alleged
evidence of prior and unrelated disciplinary actions does not
relate
to
plaintiff.
defendant
Officer
Stancoti’s
actions
toward
the
Because those claims are allegedly unrelated to the
plaintiff’s case, the defendant argues that such evidence must be
excluded. The plaintiff objects to the extent that the defendant’s
motion
precludes
the
plaintiff
3
from
using
such
evidence
for
This Court granted summary judgment in favor of Officer
Stancoti, thereby dismissing the claims against him. ECF No. 314.
6
impeachment and rebuttal purposes.
Based on the relevant federal
and West Virginia law, the defendant’s fifth motion in limine is
GRANTED AS FRAMED.
See Fed. R. Evid. 611; Wheeler v. Murphy, 452
S.E.2d 416, 424 (W. Va. 1994) (“Under [West Virginia Rule of
Evidence] 611(a), identical to its federal counterpart, the circuit
court judge is entitled to exercise broad discretion over the
manner in which proceedings are conducted.”); State v. Oldaker, 304
S.E.2d 843 (W. Va. 1983). However, Officer Stancoti’s disciplinary
record may only be used for impeachment purposes.
6. Defendant’s Motion in Limine Regarding Claim for Punitive
Damages and Motion to Bifurcate Punitive Damages Claim (ECF No.
275) — GRANTED AS FRAMED.
In his final motion in limine, the defendant argues that this
Court should (1) exclude any evidence regarding the plaintiff’s
claim for punitive damages, and (2) in the alternative, bifurcate
the plaintiff’s punitive damages claim. Here, the defendant argues
that the plaintiff has yet to prove, and will be unable to prove,
that he is entitled to punitive damages.
Accordingly, he seeks to
have this Court strike the plaintiff’s claim for punitive damages.
In the alternative, the defendant argues that the punitive damages
claim should be bifurcated from the liability claim.
In response,
the plaintiff indicates that he is “amenable to whatever procedural
process this Court typically employs with regard to punitive
damages” in § 1983 actions.
ECF No. 280.
7
However, in the interest
of judicial economy, the plaintiff contends that the punitive
damages
claim
should
be
simultaneously
presented
with
the
plaintiff’s claim under 42 U.S.C. § 1983 (“§ 1983”).
Bifurcation of trials is intended to further convenience,
avoid delay and prejudice, and to serve the ends of justice.
It is
appropriate only when the court believes that separation will
achieve the purposes of Rule 42 of the Federal Rules of Civil
Procedure. 9 C. Wright & A. Miller, Federal Practice and Procedure
(1971), sec. 2388.
After reviewing the parties’ filings and
arguments presented, the defendant’s sixth motion in limine is
GRANTED
AS
FRAMED.
Accordingly,
this
Court
sets
forth
the
following procedure for trial in this action given the granting of
the defendant’s motion in limine to bifurcate the issue of punitive
damages.
During the first phase of trial, the issues of liability
should be determined and evidence of wealth or financial condition
of the defendant will not be permitted.
The issue of compensatory
damages will be determined in the first phase.
The plaintiff may
mention in his opening statement that he is seeking punitive
damages but shall not elaborate upon that contention. At the close
of the plaintiff’s case, the Court will then determine whether he
has made a prima facie case for punitive damages.
A special verdict form will be used to determine whether the
defendant is liable for compensatory damages only, or in addition,
8
is also liable for punitive damages. If the jury determines in the
first phase that punitive damages also should be awarded, evidence
of the appropriate amount, including that of defendant’s wealth or
financial condition where relevant, will be permitted in the second
phase.
In other words, only if the plaintiff makes a prima facie
case for punitive damages and only if the jury determines that
punitive damages should be awarded, will this Court then reconvene
the jury to hear evidence as to the financial condition or wealth
of the defendant in order to arrive at a verdict as to the amount
of such punitive damages.
Perrine v. E.I. du Pont de Nemours &
Co., 694 S.E.2d 815, 919-20 (W. Va. 2010) (Ketchum, J., dissenting
in part and concurring in part) (citing Transportation Insurance
Co. v. Moriel, 879 S.W.2d 10 (Texas 1994))(suggesting the approach
cited above by this Court)); Rohrbaugh v. Wal-Mart Stores, Inc.,
572
S.E.2d
881
(W.
Va.
2002)
(“Generally,
trial
courts
are
permitted broad discretion in managing their cases and deciding
bifurcation matters . . . . [a] trial court [may decide] to
bifurcate the amount of punitive damages in order ‘to prevent the
jury from being influenced on the substantive claim by evidence of
[defendant’s] enormous wealth . . . .’”); Rupert v. Sellers, 368
N.Y.S.2d 904 (1975).
Plaintiff’s Motion in Limine
In
the
plaintiff’s
motion
in
limine,
he
requests
the
following: (1) to exclude the plaintiff’s entire criminal record,
9
including evidence related to the plaintiff’s conviction that
resulted in his current imprisonment; (2) to attend the trial in
normal, non-prison attire without restraints; (3) to exclude or
limit the defendant’s expert witness; (4) to preclude the jury from
knowing that any award to the plaintiff may warrant attorney’s fees
and costs; and (5) to exclude any evidence related to the dismissal
and motion for summary judgment in favor of the defendants.
No. 264.
ECF
This Court will address each request and set forth its
rulings as listed below.
1. To Exclude the Plaintiff’s Criminal Record — GRANTED IN PART and
DENIED IN PART.
The plaintiff argues that although some discussion of his
criminal history is needed to provide background information, the
specific facts of his criminal record are irrelevant to his claims.
Rather, the plaintiff claims that discussing his criminal record
will prove extremely prejudicial. The defendant contends that such
evidence should be admissible under Rules 403 and 609 of the
Federal
Rules
respectively).
of
Evidence
(“Rule
403”
and
“Rule
609,”
In particular, the defendant points out that the
jury will be aware that the defendant is employed at a prison, and
that the plaintiff is currently incarcerated.
Further, several of
the plaintiff’s past crimes may be considered to be dishonest acts,
which he believes are admissible under Rule 609.
10
Listed below are
the particular crimes that the plaintiff seeks to exclude and the
rulings of this Court.
a.
First Degree Robbery Conviction (2008)
Under Rule 609, in the civil action context, evidence of a
conviction of crime that is “punishable by death or by imprisonment
for more than one year” must be admitted, subject to Rule 403.
Fed. R. Evid. 609(a)(1)(A).
As to any crime, regardless of the
applicable punishment, “the evidence must be admitted if the court
can readily determine that establishing the elements of the crime
required proving — or the witness’s admitting — a dishonest act or
false statement.”
Id. at (a)(2).
However, admission under Rule
609 remains subject to Rule 403, which excludes evidence when its
potential
for
probative value.
unfair
prejudice
substantially
outweighs
its
As the court in United States v. Estrada stated:
[Rule 609(a)(1)] requires district courts to admit the
name of a conviction, its date, and the sentence imposed
unless the district court determines that the probative
value of that evidence ‘is substantially outweighed by
the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.’ This determination is left to the
sound discretion of the district court.
430 F.3d 606, 621 (2d Cir. 2005) (internal citation omitted).
Furthermore, evidence of a conviction of a crime is usually not
admissible if more than ten years have passed “since the date of
the
conviction
or
of
the
release
of
the
witness
from
the
confinement imposed for that conviction, whichever is the later
11
date.”
Ghant v. Brown, 930 F.2d 633, 638 n.10 (8th Cir. 1991)
(quoting Fed. R. Evid. 609(b)).
If more than ten years have
passed, then a court may admit evidence of that conviction “only if
(1)
its
probative
value
.
.
.
substantially
outweighs
its
prejudicial effect; and (2) the proponent gives an adverse party
reasonable written notice of the intent to use it so that the party
has a fair opportunity to contest its use.”
609(b)(1-2)(emphasis added).
Fed. R. Evid.
If a court decides to admit evidence
of a prior conviction for impeachment, “the impeaching party ‘is
generally limited to establishing the bare facts of the conviction:
usually the name of the offense, the date of the conviction, and
the sentence.”
Somerville v. Saunders, 2014 WL 272415, at *3
(N.D.N.Y. Jan. 24, 2014) (quoting United States v. Brown, 606 F.
Supp. 2d 306, 319 n.8 (E.D.N.Y. 2009) (quoting 4 Weinstein’s
Federal Evidence § 609.20[2] (2d ed. 2008))).
The
plaintiff
is
apparently
currently
serving
sentence for a conviction of first degree robbery.
a
60-year
The defendant
correctly points out that this is a felony, and may be admitted
subject to Rule 403.
It is true that the jury will likely be made
aware of the plaintiff’s conviction, because he is currently
incarcerated
and
the
facts
of
this
case
arose
from
his
incarceration. However, in light of the danger of unfair prejudice
and the risk of misleading the jury, the admissibility of the
plaintiff’s
most
recent
criminal
12
conviction
must
be
limited.
Indeed, one of the prime factors that a court should consider under
Rule 609 is “whether the crime, by its nature, is probative of a
lack of veracity.”
citations
and
Somerville, 2014 WL 272415 at *3 (internal
quotations
omitted).
The
parties
may
do
the
following: (1) comment generally about the plaintiff’s first degree
robbery
conviction;
(2)
make
the
jury
generally
aware
that
defendant Shannon Markle is a prison employee; and (3) indicate
that the plaintiff is presently incarcerated and was incarcerated
at the time of events involving this civil action. However, the
parties may not present evidence of the particular facts or
evidence which constituted the plaintiff’s conviction.
b.
Passing a Bad Check (2007)
The plaintiff was convicted of passing a bad check in Ohio in
2007.
ECF No. 281.
The Ohio Revised Code states the following:
“No person, with purpose to defraud, shall issue or transfer or
cause to be issued or transferred a check or other negotiable
instrument, knowing that it will be dishonored or knowing that a
person has ordered or will order stop payment on the check or other
negotiable instrument.”
Ohio Code § 2913.11(B) (2015).
The term
“defraud,” as used under that statute, is defined as “to knowingly
obtain, by deception, some benefit for oneself or another, or to
knowingly cause, by deception, some detriment to another.”
§ 2913.01.
Id. at
Further, evidence of a conviction for violating that
statute has been admitted under Rule 609(a)(2) for impeachment
13
purposes because passing a bad check involves both dishonesty and
a false statement.
See United States v. Mucci, 630 F.2d 737, 743
(10th Cir. 1980) (interpreting a violation of Ohio’s statute
concerning passing bad checks as an act involving dishonesty and
false statement, and thus admissible under Rule 609); Wagner v.
Firestone Tire & Rubber Co., 890 F.2d 652, 655 n.3 (3d Cir. 1989)
(noting that prior convictions for passing bad checks involved
dishonest activity, and were thus admissible under Rule 609(a)(2)
for impeachment purposes); see United States v. Rogers, 853 F.2d
249, 252 (4th Cir. 1988) (finding that evidence of a conviction for
passing a bad check under North Carolina law was admissible under
Rule 609, when the statutes used “with intent to cheat and defraud
another” language and maintained a knowledge of insufficient funds
element); United States v. Collier, 527 F.3d 695, 700 (8th Cir.
2008).
Based
conviction
on
for
the
law
passing
discussed
a
bad
above,
check
the
may
plaintiff’s
be
admissible
impeachment purposes, pursuant to Rule 609(a)(2).
2007
for
The relevant
Ohio statute requires both an element of intent to commit fraud
(“with purpose to defraud”) and knowledge that the check is bad
(“knowing that it will be dishonored”).
In addition to the
elements of that crime under Ohio law, the definition of “defraud”
under
that
statute
demonstrates
that
the
plaintiff’s
2007
conviction for passing a bad check involves dishonesty and false
14
statements,
and
thus
falls
under
Rule
609(a)(2).
Therefore,
evidence of the plaintiff’s 2007 conviction for passing a bad check
may be admitted for only impeachment purposes.
c.
Felony Attempted Robbery and Felony Theft (2003)
In 2003, the plaintiff was convicted of attempted robbery and
felony theft. ECF No. 319. Because this offense occurred over ten
years ago, Rule 609(b) applies. As discussed earlier, if more than
ten years have passed, then a court may admit evidence of that
conviction only if “(1) its probative value . . . substantially
outweighs its prejudicial effect; and (2) the proponent gives an
adverse party reasonable written notice of the intent to use it so
that the party has a fair opportunity to contest its use.”
Evid. 609(b)(1-2) (emphasis added).
Fed. R.
As one court stated, “‘[t]he
general rule [referring to Rule 609(b)] is inadmissibility.
It is
only when the court admits evidence of a conviction over ten years
old that the court must engage in a balancing test on the record.’”
United States v. Hamilton, 48 F.3d 149, 154 (5th Cir. 1995)
(quoting United States v. Estes, 994 F.2d 147, 149 (5th Cir.
1993)); United States v. Nguyen, 542 F.3d 275, 279 (1st Cir. 2008)
(“In short, Rule 609(b) is a rule of exclusion that bars the
admission of a stale felony conviction for impeachment purposes in
the absence of a particularized showing that its probative value
substantially outweighs its potential for unfair prejudice.”).
15
Moreover, district courts have broad discretion when choosing to
apply Rule 609(b).
Estes, 994 F.2d at 148.
After reviewing the record and filings, this Court finds that
the plaintiff’s 2003 conviction for attempted robbery and theft
should not be admitted under Rule 609(b).
The defendant provided
the plaintiff with notice of his intent to use that conviction,
which
is
a
requirement
under
Rule
609(b)(2).
However, that is only one of two requirements.
ECF
No.
319.
Evidence of a
conviction that is older than ten years, such as this one, is only
admissible if its probative value substantially outweighs its
prejudicial
effect.
In
this
situation,
evidence
of
those
convictions does not substantially outweigh the prejudicial effect.
Rule 609(b) should be considered a rule of inadmissibility, where
convictions over ten years old “‘should be admitted very rarely and
only in exceptional circumstances,’as ‘convictions over [10] years
old generally do not have much probative value.’” Somerville, 2014
WL 272415 at *4, *10 n.11 (quoting Brown, 606 F. Supp. 2d at 313
(quoting
Fed.
R.
Evid.
609(b),
Advisory
Committee’s
Note))).
Moreover, the nature of the convictions, which are attempted
robbery and theft, do not strongly show that “by [their] nature,
[those
convictions
are]
probative
of
a
lack
of
veracity.”
Somerville, 2014 WL 272415 at *4 (internal citations omitted).
In further support of that finding, several courts have found
that, in the Rule 609(a)(2) context, violent crimes like robbery
16
and theft may not sufficiently involve dishonesty. Thus, courts in
that situation have excluded evidence of such convictions.
Walker
v. Horn, 385 F.3d 321, 334 (3d Cir. 2004) (“[A]lthough robbery is
certainly a very serious crime, it does not involve communicative
or expressive dishonesty.
Therefore, the district court erred by
holding that robbery is a crime involving dishonesty that is
automatically admissible under Rule 609(a)(2).”); United States v.
Hayes, 553 F.2d 824 (2d Cir. 1977); United States v. Williams, 445
F.2d 421 (10th Cir. 1971); Gordon v. United States, 383 F.2d 936
(D.C. Cir. 1967).
Indeed, Rule 609(a) is a much more inclusive
section than Rule 609(b).
It is significant that courts view
convictions like robbery or theft as insufficiently “probative of
a lack of veracity,” which is a prime factor in balancing probative
value against prejudicial effect under Rule 609.
Somerville, 2014
WL 272415 at *4 (internal citations and quotations omitted); see
Daniels v. Loizzo, 986 F. Supp. 245, 250 (S.D.N.Y. 1997). Further,
the fact courts exclude such convictions, especially under the more
inclusive section of Rule 609(a), should not be taken lightly.
Here, the plaintiff’s conviction for attempted robbery and theft
has insufficient impeachment value so as to admit evidence of that
conviction. Therefore, evidence of the plaintiff’s 2003 conviction
for attempted robbery and theft is not admissible for impeachment
purposes under Rule 609(b).
17
d.
Passing a Bad Check (1999)
In 1999, the plaintiff was convicted of passing a bad check,
in violation of Ohio Code § 2913.11(B)(2015).
ECF No. 319 Ex. D.
As stated earlier, evidence of a conviction of a crime is usually
not admissible if more than ten years have passed “‘since the date
of the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the later
date.’”
Ghant, 930 F.2d at 638 n.10 (quoting Fed. R. Evid.
609(b)).
If more than ten years have passed, then a court may
admit evidence of that conviction only if “(1) its probative value
. . . substantially outweighs its prejudicial effect; and (2) the
proponent gives an adverse party reasonable written notice of the
intent to use it so that the party has a fair opportunity to
contest its use.”
Fed. R. Evid. 609(b)(1-2) (emphasis added).
This Court also stated that Rule 609(b) is generally a rule of
inadmissibility as to convictions that are over ten years old.
However, unlike the plaintiff’s convictions of attempted robbery
and theft, a conviction for passing a bad check is much more
“probative of a lack of veracity,” which is a prime factor in
balancing probative value against prejudicial effect under Rule
609.
Somerville, 2014 WL 272415 at *4 (internal citations and
quotations omitted).
In this situation, the impeachment value of
passing a bad check, which under Ohio’s statute maintains elements
of intent to commit fraud and knowledge of committing fraud, is
18
significant.
See, e.g., United States v. Colon, 480 F. App’x 509,
513 (11th Cir. 2012). Furthermore, the 1999 conviction’s probative
value substantially outweighs its prejudicial effect, and admitting
evidence of that conviction for impeachment purposes will be
neither duplicitous nor cumulative.
See United States v. Heath,
447 F.3d 535, 539 (7th Cir. 2006) (affirming exclusion of evidence
of convictions for passing bad checks that were over ten years old
when several similar convictions existed that were within a ten
year span and were admitted).
In further compliance with Rule
609(b), the defendant provided the plaintiff with reasonable notice
of his intent to use the conviction.
ECF No. 319.
Therefore, the
plaintiff’s 1999 conviction for passing a bad check may be admitted
only for impeachment purposes under Rule 609(b).
2. To Attend the Trial in Non-Prison Attire Without Restraints —
GRANTED.
As to the plaintiff’s request about his appearance, the
plaintiff believes that wearing his prison uniform will unfairly
prejudice him.
However, the defendant argues that the jury will
already know that the plaintiff is incarcerated.
Further, the
defendant asserts that the plaintiff may pose a security risk if he
is not restrained.
“In a civil action involving a prisoner, courts should, as a
matter of fundamental fairness, be wary of requiring a litigant to
appear in restraints.”
Ellis v. Navarro, 2012 WL 3580284, at *5
19
(N.D. Cal. Aug. 17, 2012); Ramirez v. Delong, 2010 WL 3118527 (W.D.
Wisc. Jul. 30, 2010).
a
constitutional
trials.”
It is a true that a prisoner does “not have
right
to
wear
particular
Ramirez, 2010 WL 3118527 at *1.
clothing
in
civil
However, the Supreme
Court of the United States has stated that a “constant reminder of
the accused’s condition implicit in such distinctive, identifiable
attire may affect a juror’s judgment.”
U.S. 501, 504-05 (1976).
Estelle v. Williams, 425
As provided by the court in Ramirez,
“[e]ven when the plaintiff’s status as a prisoner is known, the
infamous orange jump suit may have an important, if subtle, effect
on the way a juror perceives the plaintiff, serving as a ‘constant
reminder’ that the prisoner is in a different class from the other
litigants and suggests he is entitled to less respect.”
2010 WL
3118527 at *1 (quoting Estelle, 425 U.S. at 504-05).
Based on the law set forth above, the plaintiff’s request to
appear at the trial in non-prison attire without restraints is
GRANTED.
However,
that
ruling
is
subject
to
the
procedures of the United States Marshals Service.
rules
and
Plaintiff’s
counsel shall contact the United States Marshals Service located in
the Wheeling Office for further information as to what attire may
be worn and how clothing is to be provided.
3. To Exclude or Limit the Defendant’s Expert Witness — DENIED.
The plaintiff argues that the defendant’s expert witness lacks
sufficient credibility.
However, the defendant believes that his
20
expert possesses sufficient credibility so as to admit his expert
witness’s testimony.
The introduction of expert opinion testimony is governed by
Federal Rule of Evidence 702, which provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702.
Rule 702 requires the trial judge to “ensure
that any and all scientific testimony or evidence is not only
relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 589 (1993). This “gatekeeping” obligation applies to all
expert testimony, and not just the scientific testimony at issue in
Daubert. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148
(1999).
Importantly,
“rejection
exception rather than the rule.”
of
expert
testimony
is
the
Fed. R. Evid. 702, Advisory
Committee’s Note.
The first prong of this inquiry necessitates an examination of
whether the reasoning and methodology underlying the expert’s
proffered opinion is reliable — that is, whether it is supported by
validation adequate to render it trustworthy.
U.S. at 590 & n.9.
See Daubert, 509
As the Supreme Court explained in Daubert, the
21
subject of an expert’s testimony must be scientific knowledge,
meaning that it is grounded in the methods and procedures of
science and consists of more than subjective belief or unsupported
speculation.
Id. at 590.
The second prong of the inquiry requires an analysis of
whether the opinion is relevant to the facts at issue.
591-92.
See id. at
Daubert delineates five factors to assist the trial court
in determining whether an expert’s testimony will assist the trier
of fact: (1) whether the expert’s technique can be tested; (2)
whether it has been subjected to peer review and publication; (3)
the known or potential rate of error associated with a technique;
(4) if standards control the use of a technique; and (5) if the
technique is generally accepted within the scientific community.
Id. at 593-94.
While the Supreme Court stated that those factors
are designed to assist courts, the Court also cautioned, “[t]he
inquiry envisioned by Rule 702 is, we emphasize, a flexible one.
Its overarching subject is the scientific validity — and thus the
evidentiary relevance and reliability — of the principles that
underlie a proposed submission.”
Id. at 594-95.
Therefore, the
trial judge’s evaluation of whether expert testimony is admissible
under Rule 702 is a flexible one, and the judge is given broad
discretion
in
the
determination
of
testimony is relevant and reliable.
whether
particular
expert
See Oglesby v. Gen. Motors
Corp., 190 F.3d 244, 250 (4th Cir. 1999); see also Kumho Tire, 526
22
U.S. at 152.
However, a witness may not generally offer to the
jury his opinion as to the governing law at issue in the case.
Adalman v. Baker, Watts & Co., 807 F.2d 359, 366 (4th Cir. 1986)
(affirming the exclusion of testimony by expert witness which
included legal conclusions), disapproved on other grounds in Pinter
v. Dahl, 486 U.S. 622 (1988).
It is the role of the trial judge to distinguish opinion
testimony that embraces an ultimate issue of fact from opinion
testimony that states a legal conclusion.
See Owen v. Kerr-McGee
Corp., 698 F.2d 236, 240 (5th Cir. 1983).
As many courts have
recognized, it is often difficult to draw the line “between proper
expert evidence as to facts, the inferences to be drawn from those
facts, and the opinions of the expert, on the one hand, and the
testimony as to the meaning and applicability of the appropriate
law, on the other hand.”
Adalman, 807 F.2d at 366.
Nevertheless,
it is the duty of the court to “state to the jury the meaning and
applicability of the appropriate law, leaving to the jury the task
of determining the facts which may or may not bring the challenged
conduct within the scope of the court’s instruction as to the law.”
Id.
Finally, it is important to recognize that, notwithstanding a
trial
court’s
“gatekeeping”
function
as
to
expert
opinion,
“vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and
23
appropriate means of attacking shaky but admissible evidence.”
Daubert, 509 U.S. at 595.
Applying the law provided above, this Court finds that the
defendant’s expert witness’s background qualifies him to testify
regarding the propriety of both the defendant’s actions and the
policies, practices, and procedures used at the Central Regional
Jail.
The defendant’s expert witness, Howard H. Painter, has over
35 years of experience in “operation, supervision and management of
correctional facilities and systems in West Virginia.”
299.
ECF No.
Mr. Painter’s curriculum vitae sets forth a long list of
professional experience, special courses, and papers presented that
reveal his extensive correctional facilities and systems background
and enable him capable of rendering an opinion in this case.
No. 299 Ex. B.
ECF
During his analysis, Mr. Painter reviewed the
following: (1) the plaintiff’s complaint (2) documentation about
the plaintiff’s living unit assignments; (3) sworn statements from
an
inmate
and
the
plaintiff;
(4)
the
plaintiff’s
deposition
transcript; (5) a letter to the plaintiff from Jason Davis; (6) all
requests and grievances contained in the plaintiff’s inmate file;
and (7) defendant Shannon Markle’s deposition transcript.
Ex. A.
Id. at
Clearly, Mr. Painter reviewed a variety of materials in
forming his opinion in this case, applying his knowledge and
experience to the facts.
As the Fourth Circuit has stated, “Rule
702 further provides that a witness may be qualified as an expert
24
on the grounds of ‘knowledge, skill, experience, training, or
education.”
Friendship Heights Associates v. Vlastimil Koubek,
A.I.A., 785 F.2d 1154, 1159-60 (4th Cir. 1986) (emphasis in
original) (quoting Fed. R. Evid. 702)).
Painter
has
sufficient
education,
This Court finds that Mr.
knowledge,
experience,
training to make his testimony admissible under Rule 702.
and
See
Friendship Heights Associates v, 785 F.2d at 1159-60; Garrett v.
Desa Industries, Inc., 705 F.2d 721 (4th Cir. 1983) (noting that
the trial court has broad discretion in determining whether to
admit expert testimony).
An additional consideration under Rule 702 is “whether expert
testimony proffered in the case is sufficiently tied to the facts
of the case that it will aid the jury in resolving the factual
dispute.”
Daubert, 509 U.S. at 591 (quoting United States v.
Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). The consideration is
one of “fit.” In other words, will the expert testimony be helpful
to the jury.
This Court finds that Mr. Painter’s testimony may
provide information useful to a jury.
Additionally, this Court
intends to give detailed instructions as to how the jury is to
consider expert testimony, allowing the jury to decide what weight
to give Mr. Painter’s testimony.
Therefore, the plaintiff’s
request to limit or exclude the testimony of the defendant’s expert
witness must be DENIED.
25
4. To Preclude the Jury from Knowing that Any Award to the
Plaintiff May Warrant Attorney’s Fees and Costs — GRANTED IN PART
BY AGREEMENT.
The
plaintiff
believes
that
presenting
evidence
potential award of attorney’s fees will prove prejudicial.
of
any
In his
response, the defendant states he does not intend to present
evidence about those fees.
However, the defendant points out that
should a verdict be returned for the plaintiff, the jurors should
not consider attorney’s fees in their calculations.
Based on the
parties’ apparent agreement on the issue, the plaintiff’s request
is GRANTED.
See, e.g., Collins v. Alco Parking Corp., 448 F.3d
652, 657 (3d Cir. 2006); Fisher v. City of Memphis, 234 F.3d 312,
319 (6th Cir. 2000) (finding that the district court did not err in
failing to instruct the jury about attorney’s fees); Brooks v.
Cook, 938 F.2d 1048, 1051 (9th Cir. 1991) (finding that the
district court abused its discretion by providing the jury with
information about the possibility of awarding fees, and stating
that “[t]he award of attorneys’ fees is a matter of law for the
judge, not the jury.”); Lehrman v. Gulf Oil Corp., 500 F.2d 659,
667 (5th Cir. 1974) (noting in the antitrust context that if
“mentioning the trebling provisions would lower jury verdicts then
the very purpose for which the provision is designed may be
frustrated.”).
26
5.
To Exclude Any Reference or Evidence Related to the Dismissal
and Motion for Summary Judgment in Favor of the Defendants —
GRANTED.
Finally, the plaintiff argues that referencing the prior
dismissal of the defendants in this case will not only prove
prejudicial, but will also confuse the jury.
The defendant does
not object to the plaintiff’s request to limit the discussion about
the dismissal of certain defendants.
However, the defendant notes
that in his fourth motion in limine, he believes that the plaintiff
may reference certain defendant officers that allegedly harmed the
plaintiff.
Therefore,
the
defendant
wants
to
reserve
the
opportunity to introduce evidence of those dismissed defendants if
the plaintiff “opens the door.”
Similar to this Court’s ruling regarding the defendant’s
fourth motion in limine, the only remaining defendant in this civil
action is defendant Markle.
As discussed above, this is currently
the law of the case, and this Court will not revisit the rulings as
to those dismissed defendants.
Therefore, the plaintiff’s request
is GRANTED, subject to the defendant’s “opening the door” request.
Should the dismissal of prior defendants arise during the trial,
the parties may propose an appropriate limiting instruction that
the Court may consider.
27
Plaintiff’s Motion to Strike Defendant’s Expert Witness Howard
Painter (ECF No. 266) — DENIED.
Plaintiff
has
also
filed
a
separate
defendant’s expert witness Howard Painter.
motion
to
strike
The reasons for that
motion are similar to those stated in his motion in limine to
exclude or limit the defendant’s expert witness.
For the reasons
stated above with respect to that motion in limine, plaintiff’s
motion to strike is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
June 29, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
28
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