Pegg et al v. Klempa
Filing
153
MEMORANDUM OPINION AND ORDER REGARDING PARTIES' MOTIONS IN LIMINE re: 105 106 108 Motion in Limine. Signed by Senior Judge Frederick P. Stamp, Jr. on 12/1/2016. (copy to counsel via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KRISTINA PEGG,
Plaintiff,
v.
Civil Action No. 5:13CV173
(STAMP)
GRANT HERRNBERGER, individually and
in his capacity as an agent and employee
of the West Virginia State Police,
Defendant.
MEMORANDUM OPINION AND ORDER
REGARDING PARTIES’ MOTIONS IN LIMINE
The defendant has filed four motions in limine to preclude the
plaintiff from presenting certain evidence, and the plaintiff has
filed
two
motions
in
limine
presenting certain evidence.
to
preclude
the
defendant
from
The trial in this civil action is
scheduled to commence on December 6, 2016. This Court will address
those motions in limine and set forth its findings, as discussed
below.1
1.
Defendant’s motion in limine to preclude the plaintiff
from stating that returning a verdict against defendant will “send
a message,” “protect the community,” or similar statements (ECF No.
105 at 1) - GRANTED IN PART AND DEFERRED IN PART.
The defendant asks this Court to preclude the plaintiff from
making statements to the jury that returning a judgment against the
1
For a more thorough background of this civil action, see ECF
Nos. 89 and 95.
defendant will “send a message,” “protect the community,” or other
similar
statements,
presumably
statements or closing arguments.
made
by
counsel
in
opening
The defendant argues that such
comments are inadmissible under Federal Rule of Evidence 403
because they are designed to inflame the jury’s passions or to
cause the jury to render a verdict based upon personal concerns
outside of the evidence.
In response, the plaintiff argues that
such statements are permitted in closing arguments and that the
defendant cites authority from only criminal proceedings, where
courts are most keen to prevent unfair prejudice.
This Court believes that the risk of unfair prejudice is more
distinct in opening statements, as the sort of statements the
defendant seeks to preclude may have a stronger effect on the
jury’s evaluation of the evidence and arguments of counsel if made
before evidence is presented.
Thus, this Court finds that such
statements made in the defendant’s opening statement present a risk
of unfair prejudice that substantially outweighs their probative
value, and such statements will not be permitted. However, at this
time, this Court is unable to evaluate the risk of prejudice that
may be caused if the plaintiff makes such statements in closing
arguments.
That evaluation will require consideration of the
context, timing, and manner of the statement.
This matter will be
discussed at the charge conference at the conclusion of the
2
evidence in this case.
Accordingly, the defendant’s motion is
GRANTED IN PART AND DEFERRED IN PART.
2.
from
Defendant’s motion in limine to preclude the plaintiff
asserting
damages
based
on
the
value
or
importance
of
constitutional rights (ECF No. 105 at 2) - GRANTED.
The defendant argues that the plaintiff should be precluded
from
asserting
an
amount
of
damages
based
on
the
value
or
importance of the constitutional rights at stake in this civil
action.
“[T]he basic purpose of § 1983 damages is to compensate
persons
for
injuries
constitutional rights.”
that
are
caused
by
the
deprivation
of
Memphis Cmty. Sch. Dist. v. Stachura, 477
U.S. 299, 307 (1986) (internal quotation marks omitted) (emphasis
in original).
“[T]he abstract value of a constitutional right may
not form the basis for § 1983 damages.”
Id. at 308.
However,
“compensatory damages may include not only out-of-pocket loss and
other monetary harms, but also such injuries as impairment of
reputation . . . , personal humiliation, and mental anguish and
suffering.”
Id. at 307 (internal quotation marks omitted).
a plaintiff may recover only actual damages under § 1983.
Thus,
To the
extent that the plaintiff seeks to assert damages based on the
importance of the constitutional rights at stake, any such evidence
is irrelevant and any probative value is substantially outweighed
by the risk of unfair prejudice because it asks the jury to make a
3
determination of damages outside of those that may be recovered.
Accordingly, the defendant’s motion is GRANTED.
3.
Defendant’s motion in limine to preclude the plaintiff
from stating that the defendant will not be adversely affected by
the rendering of a verdict against him (ECF No. 105 at 2) - DENIED
IN PART AS MOOT AND DEFERRED IN PART.
The defendant argues that the plaintiff should be precluded
from implying that any damages owed by the defendant may be paid
through insurance or some other outside source.
In response, the
plaintiff represents that she will not suggest that the defendant
has insurance.
Thus, to the extent that the plaintiff seeks to
make statements regarding the defendant’s insurance coverage, the
defendant’s motion is moot. However, the defendant’s motion sweeps
more broadly and may include other statements regarding the nonmonetary adverse affects a judgment may have upon the defendant.
To the extent that the plaintiff seeks to make such statements, the
defendant’s motion is deferred and will be discussed with counsel
at the charge conference.
4.
Defendant’s motion in limine to preclude the plaintiff
from introducing comments allegedly made by the defendant (ECF No.
106) - DENIED.
The defendant argues that the plaintiff should be precluded
from
introducing
his
alleged
prior
statements
made
at
his
deposition in this civil action and in a separate pending civil
4
action,2 characterizing the plaintiff’s claims as a “joke.”
The
defendant argues that these comments are not relevant because they
do not make it more or less likely that the defendant unlawfully
frisked the plaintiff.
Alternatively, the defendant argues that
any probative value these comments have is substantially outweighed
by the risk of unfair prejudice to him because the statements’ only
purpose would be to inflame the passions of the jury.
defendant
also
argues
that
any
probative
value
would
The
be
substantially outweighed by the risk of undue delay and waste of
judicial resources.
These statements are probative of the defendant’s opinion of
the plaintiff’s claims and of his state of mind, which may provide
information
that
could
assist
a
factfinder
in
evaluating
Herrnberger’s testimony at trial and his account of what happened
during the traffic stop.
Thus, the statements are relevant.
Further, the statements are not substantially outweighed by the
risk of unfair prejudice to the defendant or the risk of undue
delay and waste of judicial resources.
Any prejudice to the
defendant would be slight because his negative opinion of the
plaintiff’s claims are not likely to inflame the passions of the
jury or reflect so badly upon the defendant that the jury finds in
favor of the plaintiff based only on considerations outside of the
2
Brandon and Kristina Pegg filed a separate civil action
against the defendant for conduct arising out of a separate traffic
stop conducted by the defendant. See 5:14CV116.
5
evidence.
Additionally, the statements do not threaten to delay
proceedings or take up a substantial portion of the defendant’s
trial testimony.
Finally, as the plaintiff correctly notes, the
statements may not be excluded as hearsay because they are excluded
from the definition of hearsay as an opposing party’s statement.
See Fed. R. Evid. 801(d)(2).
Accordingly, the statements are
relevant and admissible.
5.
Plaintiff’s motion in limine to preclude Samuel Faulkner
from testifying or, alternatively, to preclude Samuel Faulkner from
testifying as to the existence of reasonable suspicion or probable
cause or as to the purported “reasonableness” of the defendant’s
actions in searching the plaintiff’s person (ECF No. 108 at 2) DENIED.
The plaintiff argues that the defendant’s designated expert
witness, Samuel Faulkner (“Faulkner”), should not be permitted to
testify or to express opinions concerning the reasonableness of the
defendant’s actions because such opinions would be legal opinions
that fall beyond the scope of permitted expert testimony under Rule
702.
The defendant argues that Faulkner may testify as to whether
the defendant followed proper police procedure in conducting the
frisk, which would be helpful to the jury in determining whether
the defendant’s actions were unlawful.
He also argues that
Faulkner’s testimony will otherwise be helpful to the jury in
evaluating the defendant’s conduct generally.
6
The plaintiff did
not depose Faulkner, and this Court’s only source of Faulkner’s
opinions is his expert report.
See ECF No. 114-1.
Faulkner’s
report discusses both the defendant and the former defendant’s
actions during their entire encounter with the plaintiff and former
plaintiff. However, the defendant identifies two opinions that are
relevant here: (1) that the defendant’s frisk of the plaintiff
“complied
with
the
officer’s
training
and
with
accepted
law
enforcement best practices;” and (2) that “[i]t is normal and
customary practice for a law enforcement officer to confirm the
driving status of a passenger in a stopped vehicle prior to
allowing that passenger to take control of the vehicle that had
been stopped.”
ECF No. 114-1 at 12.
The remainder of Faulkner’s
opinions are not identified by the defendant as being relevant and
do not appear to involve the remaining claims in this civil action.
Rule 702 permits a “witness who is qualified as an expert by
knowledge, skill, experience, training, or education” to provide an
opinion and testimony if: (1) “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;” (2) “the
testimony is based on sufficient facts or data;” (3) the testimony
is the product of reliable principles and methods;” and (4) “the
expert has reliably applied the principles and methods to the facts
of the case.”
Fed. R. Evid. 702.
Further, while an expert may not
provide an opinion telling the jury what result to reach, an
7
expert’s opinion may embrace an ultimate issue.
704(a).
Fed. R. Evid.
The plaintiff does not contest Faulkner’s qualifications
to be certified as an expert on police practices in this civil
action.
Rather, she argues that Faulkner’s opinions will not be
helpful to the jury and are otherwise impermissible opinions on
ultimate legal issues.
This Court finds that the two opinions identified by the
defendant may be helpful to the jury in evaluating the defendant’s
conduct generally, in determining whether the defendant’s conduct
was
unlawful,
and
in
evaluating
interacting with the plaintiff.
the
defendant’s
purpose
in
Faulkner’s opinions regarding
whether the defendant followed customary law enforcement training
and best practices in interacting with the plaintiff involves
“knowledge, skill, experience, training, [and] education,” Fed. R.
Evid. 702, that is not “within the common knowledge of jurors,”
Persinger v. Norfolk & W. Ry. Co., 920 F.2d 1185, 1188 (4th Cir.
1990).
Thus, Faulkner’s opinions may be helpful to the jury in
determining the reasonableness of the defendant’s actions as well
as his motives.
Further, Faulkner’s opinions do not embrace ultimate legal
issues or tell the jury what result to reach.
Rather, Faulkner’s
relevant opinions deal with the defendant’s compliance with police
best practices.
Faulkner does not offer an opinion that the
defendant had reasonable suspicion to frisk the plaintiff or that
8
the defendant otherwise acted reasonably.
Based on Faulkner’s
expert report, he will be permitted to offer opinions regarding
whether the defendant complied with customary law enforcement
training and best practices.
Accordingly, the plaintiff’s motion
is DENIED.
6.
Plaintiff’s motion in limine to preclude the defendant
from testifying that he had reasonable suspicion to search the
plaintiff’s person (ECF No. 108 at 6) - DENIED.
The plaintiff asks this Court to preclude the defendant from
testifying that he had reasonable suspicion to frisk Kristina Pegg.
She argues that such an opinion would constitute a legal conclusion
and that there is no factual basis on which the defendant can base
that opinion.
In response, the defendant asks this Court to defer
ruling on this motion until trial, arguing that the defendant may
testify to his state of mind and other facts surrounding the frisk.
Based on a review of the defendant’s deposition testimony, he
is expected to testify that he did not frisk the plaintiff and that
if he did frisk her, he did not touch her inappropriately.
No. 114-2 at 7.
See ECF
The defendant may testify to the facts of his
encounter with the plaintiff as he remembers them and his state of
mind and beliefs as to the purpose for and reasonableness of his
actions, including whether he believed he had reasonable suspicion
to frisk the plaintiff. Such testimony does not tell the jury what
result to reach, but provides critical evidence regarding the facts
9
of the encounter and the defendant’s state of mind.
Accordingly,
the plaintiff’s motion 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:
December 1, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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