Weinmann et al v. McClone

Filing 60

ORDER on 48 Motions in Limine filed by Defendant, signed by Chief Judge William C Griesbach on 10/2/2015. Defendant's third, fourth and fifth motions in limine, relating to collateral estoppel and the collateral source rule, are denied. Defendant's sixth motion in limine relating to Plaintiffs' expert witness will be addressed at or just before trial. See order for full detail. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JEROME L. WEINMANN and
SUSAN M. WEINMANN,
Plaintiffs,
v.

Case No. 13-C-0088

DEPUTY PATRICK MCCLONE and
WAUPACA COUNTY,
Defendants.

ORDER ON MOTIONS IN LIMINE

Plaintiffs Jerome and Susan Weinmann brought this action under 42 U.S.C. § 1983 for
injuries sustained by them when Jerome was shot by Deputy Patrick McClone of the Waupaca
County Sheriff’s Department. Deputy McClone shot Jerome while responding to a call that Jerome
had gone into his garage with a gun intending to shoot himself. The Weinmanns allege that Deputy
McClone used excessive force against Weinmann in violation of his rights under the Fourth
Amendment. They also asserted a claim against Waupaca County, but that claim was dismissed on
summary judgment. This order addresses several motions in limine filed by McClone and taken
under advisement following a final pretrial conference held September 25, 2015.
I.

Entry to Garage
McClone moves to preclude any “claim, statements or argument challenging Deputy

McClone’s entry into the detached garage where Weinmann was situated” on the night in question.
(Mot. ¶ 3, ECF No. 48.) McClone argues any such claim, statement or argument would be improper

because the Weinmanns have not pled a claim for wrongful entry.
The Weinmanns’ claim is for excessive force under the Fourth and Fourteenth Amendments.
Such a claim requires showing Deputy McClone used objectively unreasonable force, considering
all of the circumstances surrounding the use of force. Graham v. Connor, 490 U.S. 386, 396 (1989).
That such circumstances here include the manner in which McClone entered the garage is clear from
the Seventh Circuit’s decision affirming this court’s denial of McClone’s summary judgment motion.
See Weinmann v. McClone, 787 F.3d 444, 451 (7th Cir. 2015) (“Kicking down a door and
immediately shooting a suicidal person who is neither resisting arrest nor threatening anyone save
himself is an excessive use of force. . . . McClone did not look through the other windows into the
garage to see what Jerome was doing, nor did he try to talk to him. Instead, within three minutes
of arriving at the scene, McClone opened fire. Either viewed as so plainly excessive that no
analogous case is needed, or viewed in light of existing authority, this was an excessive use of
force.”). Of course, the Seventh Circuit’s decision was based on a factual record in which McClone
conceded certain things for purposes of summary judgment on his qualified immunity defense. At
trial, McClone will be able to present his side of the story. The Weinmanns will too, however, and
the circumstances leading up to the use of force, including McClone’s entry to the garage an instant
before he discharged his weapon, are relevant to their claim.
McClone also argues that “any claims, statements or arguments that the entry itself by law
enforcement into Plaintiffs’ garage, or the subsequent search or seizure of his person or evidence,
were illegal, or were improper” should be precluded by collateral estoppel arising from a state trial
court order denying Jerome Weinmann’s motion to suppress in a prior criminal case. Jerome was
charged with being a felon in possession of a firearm following the incident in question. He moved
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to suppress evidence including the gun, arguing Deputy McClone should have obtained a warrant
before entering the garage. Waupaca County Circuit Court Judge Phillip Kirk rejected this
argument, finding instead that McClone’s actions were reasonable and his entry to the garage was
lawful based on exigent circumstances. (Hearing Tr. at 31, Ford Aff. Ex. H, ECF No. 50-8.)
Weinmann ultimately pled no contest to and was convicted of this offense, and he did not appeal the
denial of his motion to suppress. McClone argues that, given Judge Kirk’s ruling on the motion to
suppress, the Weinmanns are precluded from presenting evidence or arguing to the jury on a number
of the underlying issues before Judge Kirk, including how long McClone was on the scene before
entering the garage, whether he got a search warrant, and more. (See Mot. ¶ 4(a)–(l).)
“[F]ederal courts must give a state court judgment the same preclusive effect that it would
receive under state law.” Wilhelm v. County of Milwaukee, 325 F.3d 843, 846 (7th Cir. 2003).
Under Wisconsin law:
Issue preclusion addresses the effect of a prior judgment on the ability to re-litigate
an identical issue of law or fact in a subsequent action. In order for issue preclusion
to be a potential limit on subsequent litigation, the question of fact or law that is
sought to be precluded actually must have been litigated in a previous action and be
necessary to the judgment. If the issue actually has been litigated and is necessary
to the judgment, the circuit court must then conduct a fairness analysis to determine
whether it is fundamentally fair to employ issue preclusion given the circumstances
of the particular case at hand.
Mrozek v. Intra Financial Corp., 2005 WI 73, ¶ 17, 281 Wis. 2d 448, 699 N.W.2d 54 (internal
citations omitted).
In this case, the issue for trial—whether Deputy McClone’s use of deadly force was
excessive—was not “actually litigated” in the previous case, where the issue on the motion to
suppress was about the reasonableness, for Fourth Amendment purposes, of McClone entering the

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garage without first obtaining a warrant. These are clearly different issues. To say that exigent
circumstances existed that justified McClone’s entry to the garage without first obtaining a search
warrant is not the same as saying that McClone did not use excessive force in shooting Weinmann
upon entering the garage. As the Seventh Circuit explained in affirming the court’s denial of
defendant’s motion for summary judgment, determining whether a state officer’s use of force is
excessive for Fourth Amendment purposes requires a balancing of “the nature and quality of the
intrusion on the individual's Fourth Amendment interests against the countervailing governmental
interests at stake.” 787 F.3d at 448 (quoting Graham v. Connor, 490 U.S. 386, 395(1989)). In
performing that balancing, that court explained, the factfinder “should consider the facts and
circumstances of each particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id. Ultimately, “the question is whether the
officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397.
Here, the state court found that Deputy McClone was justified in entering Weinmann’s
garage without first obtaining a warrant under both the exigent circumstances exception to the search
warrant requirement and under the community caretaker exception. Weinmann has indicated that
he does not intend to argue that Deputy McClone’s entry was illegal, but claims he must be able to
put before the jury the circumstances leading up to the shooting, including McClone’s entry, and
should be free to argue that McClone acted unreasonably in choosing to enter the garage at the time
and in the manner he did. I agree. Judge Kirk made no formal findings of fact, other than to
conclude generally that Deputy McClone acted reasonably in entering immediately upon the belief
that Weinmann was in the process of committing suicide. Order Denying Mot. for Reconsideration,
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ECF No. 50-7.
Equally important, I conclude it would be unfair to bar Weinmann from arguing that Deputy
McClone’s conduct leading up to the shooting was unreasonable. As noted above, even if there are
common factual issues underlying both the excessive force claim in this case and the illegal entry
claim, Wisconsin courts would not apply issue preclusion if the fairness analysis convinces the court
that it would be unfair to do so. In conducting the fairness analysis, Wisconsin courts consider the
following factors:
(1) whether the party against whom preclusion is sought could have obtained review
of the judgment; (2) whether the question is one of law that involves two distinct
claims or intervening contextual shifts in the law; (3) whether there are apt to be
significant differences in the quality or extensiveness of the two proceedings such
that relitigation of the issue is warranted; (4) whether the burden of persuasion has
shifted such that the party seeking preclusion had a lower burden of persuasion in the
first trial than in the second; and (5) whether matters of public policy or individual
circumstances would render the application of issue preclusion fundamentally unfair,
including whether the party against whom preclusion is sought had an inadequate
opportunity or incentive to obtain a full and fair adjudication of the issue in the initial
litigation.
Mrozek, 2005 WI 73 at ¶ 17. Consideration of several of these factors leads me to conclude that
it would be unfair to apply issue preclusion here, even if it would otherwise apply.
First, while it is true that Weinmann could have sought review of the trial court’s order
denying his motion to suppress by appealing his conviction, he had little incentive to do so.
Weinmann’s attorney in the criminal proceeding negotiated a plea agreement on his behalf that
resulted in a sentence of probation for three years with 90 days of jail as a condition of probation that
was stayed. In other words, Weinmann received straight probation with no jail time. Given his
medical condition and his previous felony conviction, he had no incentive to pay an attorney to
appeal the adverse ruling.
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The second and third factors also favor denying preclusive effect to the prior state court
ruling. As noted above, the questions of law involve two distinct legal claims: illegal warrantless
entry and excessive use of force. Moreover, Weinmann’s motion to suppress was decided by a trial
judge after a brief evidentiary hearing that was part of the criminal proceedings against him. In his
lawsuit against Deputy McClone on his claim for excessive use of force, Weinmann is entitled to
conduct extensive pretrial discovery and have a jury determine the facts after full trial. Both the
quality and extensiveness of presentation of the issue at trial, removed from the context of a criminal
proceeding seeking the suppression of evidence, are likely to be greater.
It is true that Weinmann will have the burden of proving by a preponderance of the evidence
that Deputy McClone acted unreasonably in his use of force against him, whereas in the criminal
proceeding, the State had the burden of proof on whether the entry was unreasonable, but the fifth
consideration also supports denying the state court determination preclusive effect. On the one hand,
the public policies motivating the preclusion doctrine which are related to finality of judgments and
protecting parties from repetitious or harassing litigation are not at play. See Michelle T. by Sumpter
v. Crozier, 173 Wis. 2d 681, 688, 495 N.W.2d 327 (1993) (“[F]ederal and state courts balance
competing goals of judicial efficiency and finality, protection against repetitious or harassing
litigation, and the right to litigate one's claims before a jury when deciding whether to permit parties
to collaterally estop one another.”). On the other hand, the Weinmann’s have a strong interest,
indeed, an interest guaranteed under the Seventh Amendment, in presenting all relevant evidence to
their never-before litigated excessive-force claim. And as noted above, given the fact that Mr.
Weinmann’s attorney was able to negotiate on Weinmann’s behalf a favorable plea agreement in the
previous case, Weinmann would have had little incentive to appeal Judge Kirk’s ruling. Cf. Mrozek,
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2005 WI 73, ¶ 21 (concluding that guilty plea pursuant to plea agreement did not fulfill the “actually
litigated” requirement for issue preclusion regarding the facts underlying the criminal conviction).
In sum, I conclude upon consideration of all of the foregoing factors that it would be unfair
to preclude Weinmann from fully litigating his claim against Deputy McClone based on the state
court ruling on his motion to suppress the evidence against him in his criminal case. McClone’s
motions in limine 3 and 4 are therefore denied.
II.

Medical Expenses Paid by Plaintiffs’ Insurer
McClone also moves to preclude “any claim for medical expenses paid by United Health Care

under its insurance policy, on the basis of United Health Care’s subrogation rights and because
double recovery to the Plaintiffs is not allowed.” (Mot. ¶ 5.) In support of this argument, McClone
notes that the insurance policy between United Healthcare and Susan Weinmann under which Jerome
Weinmann received benefits contains a subrogation agreement. Under Wisconsin law, it has been
said that where subrogation exists, the collateral source rule—which holds that a personal injury
claimant’s recovery is not to be reduced by the amount of compensation received from sources
“collateral” to the defendant1 —is inapplicable. See Lambert v. Wrensch, 135 Wis. 2d 105, 121, 399
N.W.2d 369 (1987); Ellsworth v. Schelbrock, 2000 WI 63, ¶ 18, 235 Wis. 2d 678, 611 N.W.2d 724.
The theory is that one of the purposes of subrogation is to prevent double recovery, and therefore
“an insurer’s subrogation rights may trump the collateral source rule and prevent a plaintiff from
recovering from a defendant-tortfeasor the amounts paid by the subrogated party.” Koffman v.
Leichtfuss, 2001 WI 111, ¶ 36, 246 Wis. 2d 31, 630 N.W.2d 201.

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Lambert v. Wrensch, 135 Wis. 2d 105, 110 n.5, 399 N.W.2d 369 (1987).
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In Lambert the Wisconsin Supreme Court held that the plaintiff could not recover amounts
paid by the subrogated party even when the tortfeasor would not have to pay the subrogated party
those amounts because the subrogated party’s claim against the tortfeasor had expired under the
applicable statute of limitations. Although this situation winds up creating a windfall for the
tortfeasor, “that is the public policy expressed in the statutes of limitation.” Lambert, 135 Wis. 2d
at 119, 399 N.W.2d 369 (quotation omitted). McClone argues that because United Healthcare was
never named in this action and has not asserted any claim against McClone, its claim is time-barred,
and Plaintiff is precluded from recovering from McClone amounts paid by United, just as in Lambert.
In response, Plaintiffs state that prior to filing this suit, they “agreed to protect the interest of United
Healthcare,” as “is a very common method to address subrogated liens.” (Pls.’ Resp. 8, ECF No.
56.) Plaintiff notes that there is no risk of double recovery by Jerome Weinmann because United will
be reimbursed from any potential recovery “by agreement and contract.” (Id.)
The court agrees with Plaintiffs that there is no risk of double recovery here. If what
Plaintiffs say is true—i.e., United assigned its claim to them before they filed2—United’s claim would
not be extinguished as McClone asserts. And although McClone argued at the final pretrial
conference that the only evidence of such an assignment in the record is the word of Plaintiffs’
counsel, the applicability of a statute of limitations is normally an affirmative defense the defendant
must prove. In any event, aside from the issue of the timeliness of a United subrogated claim against
2

After the final pre-trial conference, Plaintiffs’ counsel submitted an affidavit in which he
states that although he does not have any independent recollection of his conversations with the
representatives of the subrogated insurer, it would have been his practice to advise that the
plaintiffs were aware of the subrogation interest and would protect the interest over the course of
the litigation. Plaintiffs’ counsel also submitted a written assignment of United’s claim to
Plaintiffs, executed September 30, 2015, and formalizing the parties’ pre-existing agreement.
(ECF No. 59-1.)
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McClone, the insurance policy at issue is covered by ERISA, and therefore Plaintiffs would be
required by that statute to reimburse United any recovery from McClone. See Central States,
Southeast and Southwest Areas Health and Welfare Fund v. Lewis, 745 F.3d 283 (7th Cir. 2014)
(insurer’s subrogation lien enforceable under ERISA, 29 U.S.C. § 1132(a)(3)).
Finally, any timeliness issue that may exist can also be resolved by amendment of the
complaint. Under Wisconsin law, United would be joined under Wis. Stat. § 803.03(2)(a), and its
subrogation claim would not be time-barred because Plaintiffs timely commenced this action.
Anderson v. Garber, 160 Wis. 2d 389, 400 n.3, 466 N.W.2d 221 (Ct. App. 1991); Aetna Cas. &
Sur. Co. v. Owen, 191 Wis. 2d 744, 751–52, 530 N.W.2d 51 (Ct. App. 1995). In federal practice,
Plaintiffs could name United Healthcare as an involuntary plaintiff. Although Rule 15(c) of the
Federal Rules of Civil Procedure does not expressly deal with the issue of the “relation back” of an
amended pleading that adds a separate claim by a new plaintiff, the analysis is the same as when a
defendant is added. See Korkow v. Gen. Cas. Co. of Wis., 117 Wis. 2d 187, 344 N.W.2d 108 (1984)
(discussing “relation back” of amendments adding separate claim by different plaintiffs under
Wisconsin and federal law); Hocket v. American Airlines, Inc., 357 F. Supp. 1343, 1347–48 (N.D.
Ill. 1973) (amendment adding separate claim by new plaintiff related back where the adverse party
had notice and was not prejudiced); Fed. R. Civ. P. 15 Adv. Comm. Notes to 1966 Amendment
(“The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15(c)
since the problem is generally easier. Again the chief consideration of policy is that of the statute of
limitations, and the attitude taken in revised Rule 15(c) toward change of defendants extends by
analogy to amendments changing plaintiffs.”). Here, such an amendment would be permissible
because United’s claim would arise out of the same transaction as the claims in the initial pleading,
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and McClone had fair notice of the claim and would not be prejudiced by the fact that it was not part
of Plaintiffs’ initial pleading. Rather, Plaintiffs have alleged all along that they are seeking to recover
the expenses incurred for medical care allegedly caused by McClone’s actions. (Compl. ¶ 27, ECF
No. 1.)
The only outstanding motion in limine in this case concerns Defendant’s objections to the
testimony of Plaintiffs’ expert witness Dr. William Gaut. Plaintiffs have supplemented the record
following the final pretrial conference with the questions they will ask Dr. Gaut to answer (though
not Gaut’s proposed testimony). (ECF No. 59.) Absent some indication of what opinions Dr. Gaut
would express in response to the questions posed to him, it is impossible to determine whether they
would be admissible. Accordingly, any issues with respect to Dr. Gaut’s testimony will have to be
addressed at or just before trial.
For the reasons above, Defendant’s motions in limine based on collateral estoppel and based
on United Healthcare’s supposedly expired subrogation claim are denied.
SO ORDERED this 2nd

day of October, 2015.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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