Penkalski, Paul v. UW Board of Regents et al
Filing
61
ORDER granting in part, denying in part and reserving in part on 45 Motion in Limine. Signed by District Judge William M. Conley on 08/14/2015. (bgw),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PAUL PENKALSKI,
v.
Plaintiff,
OPINION AND ORDER
12-cv-168-wmc
TANNER GERSTNER,
Defendant.
Having found liability on plaintiff’s claim of unlawful arrest in violation of his
Fourth Amendment rights, this case is set for a trial solely on damages for this violation.
Before the court are four motions in limine, all by defendant.
(Dkt. #45.)
While
plaintiff did not directly oppose the motions, other filings by plaintiff touch on the core
issue presented in the motions: the scope of the allowable claim for damages. (Dkt.
##51, 53, and 60.) For the reasons that follow, the court will grant in part, deny in part,
and reserve in part on defendant’s motion.
I. Motion in Limine #1:
Penkalski’s Arrest
Precluding Damages Based More Generally on
Defendant seeks a motion excluding all evidence and argument not directly related
to defendant’s act of stepping over the threshold into Penkalski’s apartment to make an
arrest. Specifically, defendant takes issue with plaintiff claiming damages associated with
the following activities or instances: (1) handcuffing and transporting Penkalski to jail;
(2) the alleged observation of arrest by his neighbors; (3) an interruption of his planned
trip to Canada caused by the arrest; and (4) alleged damage to his career and reputation.
Defendant’s primary argument is that all of these damages arise from the fact of
his arrest -- for which this court has already found as a matter of law Gerstner had
probable cause -- and is, therefore, independent from the unlawful location of his arrest
for which the court has found liability. In response, plaintiff principally argues that the
jury should be allowed to decide whether the arrest would have happened but for
Gerstner’s unlawful entry. If they were to find that it would not have happened, plaintiff
argues, then the award of damages may encompass proximate injuries flowing from the
arrest itself (rather than just the unlawful entry to effectuate the arrest).
Plaintiff further posits at least three scenarios in which the arrest would not have
happened. First, if Gerstner had left the scene to obtain a warrant, the judge may not
have signed off on an arrest warrant given uncertainty as to whether Penkalski was
actually in an area prohibited by the TRO. Second, if Gerstner had not entered his
house, Penkalski may have had time to retrieve the relevant map associated with the
TRO and could have convinced Gerstner (or one of his supervisors) that he was not in an
area prohibited by the TRO. Third, after failing to arrest Penkalski, Gerstner may have
left the scene and UW may have decided not to pursue an arrest for any number of
reasons.
On the other hand -- as plaintiff fails to acknowledge -- Gerstner and the other
officer may have opted to wait outside of Penkalski’s apartment until a warrant was
quickly obtained by Gerstner’s supervisor, who after all participated in the investigation
and authorized Penkalski’s arrest. Certainly, there was a probable cause story to tell with
no obvious holes. Indeed, even the map Penkalski relies upon (dkt. #25-4) shows that at
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least half of the parking lot in which he admits riding his bike was within the restricted
area of the Memorial Union for purposes of the TRO against him, making his claim that
a judge or the police officer would not have found probable cause to arrest dubious.
Similarly, it is no less probable that the police would have acted to get a warrant or waited
for him to leave than any of the other scenarios.
Or, since all of this is essentially
speculation, Penkalski would have eventually found his map, allowed Gerstner in, and
been arrested anyway.
Most troubling of plaintiff’s possible scenarios is the notion that a lay jury would
be allowed to speculate as to whether a state court judge would have issued a warrant,
but all of the scenarios would essentially require the jury to guess as to the outcome.
Barring a persuasive evidentiary proffer by plaintiff at Monday’s final pretrial conference,
therefore, the court will limit plaintiff’s claim to compensatory damages to any injury
(whether physical or mental) caused by defendant entering into Penkalski’s apartment to
effectuate the arrest.
II. Motion in Limine #2: Excluding Testimony of the Cause of Penkalski’s
Emotional or Psychological Damages
Defendant next seeks an order excluding Penkalski’s testimony as to the cause of
his alleged emotional or psychological damages. Defendant argues that plaintiff would
need to have expert testimony to establish that Gerstner’s entering Penkalski’s apartment
to make an arrest caused his emotional and psychological damages. Instead, defendant
would limit Penkalski to his own perceptions of his mental health issues. The court
agrees with defendant that plaintiff cannot testify that the unlawful entry caused a
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particular medical condition.
Plaintiff can, of course, describe the impact that the
unlawful entry had on his mental and physical well-being. See Henrickson v. Cooper, 589
F.3d 887, 893 (7th Cir. 2009) (allowing plaintiff to describe pain resulting from attack
where there is “no complicated question of medical causation”); Holleman v. Duckworth,
700 F.2d 391, 395 (7th Cir. 1993) (permitting plaintiff to testify as to his own medical
symptoms).
III. Motion in Limine #3: Excluding Evidence that Plaintiff Suffered Physical
Injury
Defendant also seeks an order excluding from evidence any claim of damage of a
physical nature suffered by plaintiff as a result of defendant’s unlawful entry in the
absence of plaintiff receiving any medical care or treatment for his alleged injuries.
Specifically, defendant argues that “[p]laintiff cannot now claim medical conditions that
have never been diagnosed or treated by a medical professional.” (Def.’s MIL (dkt. #45)
5.) While the court agrees that plaintiff cannot testify to any medical treatment that he
did not seek, plaintiff could testify to physical injury caused by defendant’s actions, if
such an injury occurred. Without the benefit of plaintiff’s response, it is not possible to
assess whether plaintiff suffered any physical harm or injury caused by defendant’s entry
into his apartment. Plaintiff should be prepared to make an evidentiary proffer on this
category of damages as well.
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IV. Motion in Limine #4: Excluding Evidence that Charges Were Dropped
Finally, defendant seeks an order excluding any reference to the fact that the
charges were dropped following plaintiff’s May 19, 2010, arrest. Defendant contends
that such evidence is either irrelevant in light of the fact that the court has already
determined that Officer Gerstner had probable cause to arrest plaintiff, or even if
relevant, its prejudicial effect would outweigh any probative value under Rule 403.
Because the court intends in the introductory instructions to inform the jury that Officer
Gerstner had probable cause to arrest Penkalski -- to do otherwise could confuse the issue
for the jury to decide -- the court also intends to inform the jury that those charges were
eventually dropped.
Both elements are essential to provide the jury context in
considering an award of punitive damages, if any.
ORDER
IT IS ORDERED that defendant Tanner Gerstner’s motions for limine (dkt. #45)
is GRANTED IN PART, DENIED IN PART AND RESERVED IN PART for the reasons
explained above.
Entered this 14th day of August, 2015.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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