Soto, Jose v. Kelley et al

Filing 104

FINAL PRETRIAL CONFERENCE ORDER. Signed by District Judge James D. Peterson on 7/20/2017. (Attachments: # 1 Final voir dire, # 2 Final introductory jury instructions) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JOSE SOTO,

v.

Plaintiff,

FINAL PRETRIAL
CONFERENCE ORDER

KELLY RICKEY, MATTHEW GRANT,
RICK DONOVAN, WILLIAM GEE,
JASON KROCKER, and WILLIAM LEFEVRE,

14-cv-514-jdp

Defendants.
The court held a final pretrial conference on Wednesday, July 19, 2017, before
United States District Judge James D. Peterson. Plaintiff Jose Soto appeared by counsel,
Gabriel Galloway. Defendants Kelly Rickey, Matthew Grant, Rick Donovan, William Gee,
Jason Krocker, and William LeFevre appeared by counsel, Ann Peacock and Gesina Carson.

GENERAL PRETRIAL INSTRUCTIONS
Counsel predicted that the case would take two to three days to try. The court will tell
the jury four. The jury will consist of eight jurors to be selected from a qualified panel of 14.
Each side will exercise three peremptory challenges against the panel. Trial days will begin at
9:00 a.m. and will run until 5:30 p.m., with at least an hour for lunch, two short breaks in
the morning, and two short breaks in the afternoon. Counsel may be required to be in court
earlier than 9:00 a.m. to address matters without the presence of the jury. On the first day of
trial, counsel are directed to appear at 8:30 a.m.
The parties stipulated, and the court admitted, all exhibits with the exception of
defendants’ Exhibit No. 517, the conduct report hearing records, on which the court reserved

ruling. On the first day of trial, plaintiff’s counsel will be prepared to indicate which pages of
Exhibit No. 517 he wishes to admit and why they are admissible. The parties will use
defendants’ exhibit binder, which contains all of the exhibits Soto intends to admit. All the
admitted exhibits may be used at trial with witnesses or in argument without a further formal
motion. Only those exhibits that are used with witnesses or discussed in closing argument will
be sent to the jury during deliberations. As for Soto’s Exhibits Nos. 1, 4, 5, and 6, the parties
agreed that these exhibits may only be used for impeachment purposes.
Unless otherwise agreed by the parties, counsel must disclose any exhibits to be used
in opening statements not later than 6:00 p.m. on Friday, July 22, 2017, and identify the
witnesses they anticipate calling not later than 6:00 p.m. on the business day before that
witness is expected to testify.
Counsel should keep in mind that opening statements are an overview of the
evidence. Arguments are to be reserved for the end of the trial.
Counsel indicated that they will be familiar with the court’s visual presentation
system before trial begins. Counsel should use the microphones at all times and address all
objections to the bench, not to opposing counsel. If counsel need to consult with one
another, they should ask for permission to do so. Only the lawyer questioning a particular
witness may raise objections to questions put to the witness by the opposing party and argue
the objection at any bench conference.
If counsel call the opposing party’s witness as an adverse witness, counsel for the
opposing party may choose whether to ask only clarifying questions of the witness and call
the witness in their own case or do all their questioning during their opponent’s case, in
which case the party calling the witness will have an opportunity to respond with

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questioning. If counsel choose the first option, they are free to call the witness during their
case. Counsel have the same two options as to any adverse witness; they are not bound by
their decision on questioning any previous witness. Counsel for the witness should inform the
court which approach they will be taking before beginning the examination.

VOIR DIRE AND JURY INSTRUCTIONS
The court and the parties discussed the draft voir dire and introductory instructions as
distributed. The court made several changes to the voir dire and introductory instructions
based on the parties’ requests, to which no objections were made. Final versions of the voir
dire and introductory instructions are attached to this order.
Soto objected to the second question on the verdict form, which asks the jury to
assess the total amount of compensatory damages, rather than assessing damages separately
against each defendant; the court overruled the objection. Final decisions on the post-trial
instructions and verdict form will be made at the instruction conference near the end of the
trial.

RULINGS ON MOTIONS
The court granted defendants’ motion to exclude any mention of lawsuits, complaints,
or newspaper articles relating to or referring to the Wisconsin Department of Corrections or
defendants. As for defendants’ motion to preclude Soto from testifying about the causation,
permanence, future care and treatment, or future pain and suffering of any physical injury,
the court granted the motion only in part. The court will allow Soto to testify about the
physical injuries and current pain that he attributes to the incident at issue based on

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counsel’s representation of Soto’s expected testimony. But should Soto venture further afield
into territory that would require truly expert testimony, defendants may object.

ORDER
IT IS ORDERED that:
1. Defendants’ motion in limine no. 1, Dkt. 88, is GRANTED.
2. Defendants’ motion in limine no. 2, Dkt. 88, is GRANTED in part, consistent
with explanation above and at the final pretrial conference.
Entered July 20, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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