Westmore, Patricia et al v. Hyde, David et al

Filing 106

ORDER granting in part, denying in part and reserving in part 64 Motion in Limine ; granting in part, denying in part and reserving in part 72 Motion in Limine ; granting in part, denying in part and reserving in part 78 Motion in Limine ; denying 103 Motion in Limine Signed by District Judge William M. Conley on 05/12/2016. (mfh)

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

PATRICIA A. WESTMORE and DWIGHT R.
WESTMORE,
Plaintiffs,

OPINION AND ORDER

v.
14-cv-861-wmc
DAVID HYDE
PROVOST,

and

DEPUTY

TERRI

L.

Defendants.

This case is set for jury trial commencing May 23, 2016. In advance of the final
pretrial conference scheduled May 17, 2016, the court issues the following opinion on
the parties’ respective motions in limine. (Dkts. ##64, 72, 78, 103.)1
OPINION
I. Plaintiffs’ Motions in Limine
A. MIL to exclude expert opinion testimony ((dkt. #72) ¶ 1)
First, plaintiffs move to exclude any expert opinion testimony from Lesley Szenay,
Heidi Jahnke, Callae Hyde and David Hyde, all of whom defendants named as experts
under Federal Rule of Civil Procedure 26(a)(2)(C), Having already denied plaintiffs’
motion to strike affidavits and exhibits prepared by those same four witnesses on
summary judgment, since plaintiffs failed to demonstrate that they were Rule
Plaintiffs’ motions in limine discussed below in subsections I(C) and I(D) were filed after the
deadline established by the pretrial conference order, purportedly because they were “revised”
based on the court’s summary judgment order. Although both motions are entirely unrelated to
plaintiffs’ two timely filed motions, and nothing in these late-filed motions suggests that plaintiffs
could not have filed them by the deadline, the court addresses and will deny these additional
motions in the interest of efficiently resolving issues in advance of trial.
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26(a)(2)(B) witnesses who were required to provide a more detailed expert report (5/6/16
Op. & Order (dkt. #93)), there is little more to the pending motion. Still, in addition to
citing Rule 26(a)(2) and Rule 37, plaintiffs argue that the four witnesses should not be
permitted to offer expert opinion testimony under Federal Rules of Evidence 602, 701
and 702.
The gist of plaintiffs’ “new” argument is essentially the same as the last:

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expected opinion testimony of the four witnesses is inadmissible “because it is not based
on personal knowledge, does not qualify as lay opinion, and is not qualified by
knowledge, skill, experience, training or education.” (Pls.’ Br. (dkt. #72) at 2.) Plaintiffs
even acknowledge that the grounds for this motion in limine are more fully set forth in
their now-rejected motion to strike, going so far as to incorporate expressly the arguments
made in that motion by reference.2
With respect to both their motion in limine and motion to strike, plaintiffs do not
challenge the scientific or specialized knowledge of defendants’ experts, and while
plaintiffs’ arguments regarding the reliability of the experts’ opinions based on the BCS
system are appropriate for the jury, they fall short of establishing a basis to exclude those
opinions altogether.

Since plaintiffs have presented no reason to exclude opinion

testimony from defendants’ experts wholesale, beyond those already rejected by this
court on summary judgment, their motion will be DENIED.

In their earlier motion, plaintiffs only (1) challenged the opinions stated by defendants’ experts
on the basis that their “claimed expertise” was insufficient to qualify them as experts under Rule
702 and (2) attacked the reliability of the Henneke Body Conditioning Scoring (“BCS”) system, a
method on which they relied to evaluate the condition of plaintiffs’ animals. (Pls.’ Opening Br.
(dkt. #55) at 21-22.)
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B. MIL to exclude testimony from late-disclosed witnesses and untimely
discovery ((dkt. #72) ¶ 2)
Next, plaintiffs move to exclude testimony from witnesses that defendants did not
disclose in their Rule 26 initial disclosures, as well as any evidence gathered from
depositions defendants noticed after the close of discovery.

In response, defendants

represent that no depositions will be taken after the discovery deadline, rendering that
portion of plaintiffs’ motion moot.
Defendants further acknowledge their failure to identify by name in their initial
disclosures four witnesses they now intend to call at trial, but argue that the court should
nevertheless allow those witnesses to testify. As an initial matter, defendants argue that
plaintiffs have long been aware of two of the witnesses, Jim Mineau and Lance Goetlich,
by category, if not by name, since defendants listed as potential witnesses in their initial
disclosures “unknown neighbors” who “may have been present on Plaintiffs’ farm on
December 27, 2013 and/or other dates and could have relevant information related to
these proceedings.” (Defs.’ Rule 26 Initial Disclosures (dkt. #10-1) at 5.) Furthermore,
with respect to Mineau and Goetlich, plaintiff Patricia Westmore referenced them by
name in a Facebook post on December 22, 2013, and again mentioned both of them at
her deposition.
Even assuming that plaintiffs were generally aware of their neighbors, including
Mineau and Goetlich, defendants offer no good reason for failing to provide any
supplemental notice informing plaintiffs that defendants now viewed those specific
individuals as potential witnesses for trial, or at least a more detailed description than is
in defendants’ initial disclosures regarding the roles unnamed neighbors played in the
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material facts surrounding this lawsuit. Given the defendants lack of explanation, the
court agrees with plaintiffs that defendants use of Mineau and Goetlich as trial witnesses
would violate both the letter and spirit of Rule 26. See Fed. R. Civ. P. 26(a)(1) advisory
committee’s note to 2000 amendment (“The disclosure obligation attaches both to
witnesses and documents a party intends to use and also to witnesses and to documents
the party intends to use if -- in the language of Rule 26(a)(3) -- ‘the need arises.’”).
Accordingly, this portion of plaintiffs’ motion will be GRANTED.
Defendants also argue that they adequately disclosed Deputy Bruce Joanis as a
witness in their initial disclosures by attaching Callae Hyde’s incident report, which
states that Joanis explained to Patricia Westmore on January 16, 2014, that she needed
to “listen . . . so she could change her situation to be in accordance with the law.” (Defs.’
Opp’n Br. (dkt. #90) at 4 (alteration in original).) The court disagrees that a reference
to Joanis in Callae Hyde’s incident report is sufficient alone to excuse their failure to
identify him as a potential witness, especially since they had full knowledge of his name
and role at the time of their initial disclosures. Moreover, defendants only assert that
Joanis’s testimony would be relevant to Patricia Westmore’s retaliation claim, on which
the court granted summary judgment in defendant’s favor. (5/6/16 Op. & Order (dkt.
#93).) Even if the court were to excuse defendants’ failure to disclose Joanis, therefore,
his testimony is no longer relevant to any of the issues remaining in this case.
Accordingly, this portion of plaintiffs’ motion will also be GRANTED.
Finally, defendants do not even argue that plaintiffs were (or should have been)
aware that they may call Deputy Jon Pillath as a witness at trial. Instead, defendants
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assert that Pillath would only be offered to rebut expected testimony from plaintiffs that
a photo of Blacky, plaintiffs’ horse that died after being seized, was an accurate depiction
of the horse’s condition at the time plaintiffs retrieved its body. Since Blacky’s death is
not relevant to defendants’ liability, but arguably relevant to damages, see discussion,
infra, II.H., this portion of plaintiffs’ motion will be GRANTED as to the liability phase,
but the court will RESERVE as to the damages phase.
C. MIL to exclude all evidence of defendants’ observations of the
conditions of plaintiffs’ animals ((dkt. #103) ¶ 1)
Plaintiffs also seek an order excluding any evidence of defendants’ observations of
the conditions of plaintiffs’ animals on December 26 and 27, 2013, arguing that “such
evidence is not relevant to the issues of consent, and would be unfairly prejudicial to
plaintiffs.” (Pls.’ Br. (dkt. #103) at 2.)

Plaintiffs’ argument fails to appreciate that

evidence of the conditions of their animals may be relevant during the liability phase of
trial in evaluating whether the seizures were lawful, should the jury find that defendants
did not execute an illegal, warrantless search. See discussion, infra, II.D. For this reason,
plaintiffs’ motion will be DENIED.
D. MIL to exclude evidence of Provost’s alleged excessive forc, other than
personal observations or experience ((dkt. #103) ¶ 2)
In this motion, plaintiffs seek to exclude evidence relevant to their excessive force
claim, other than personal observations or experience, on the basis that “any other
evidence is irrelevant and would be unfairly prejudicial to Plaintiff Patricia Westmore.”
(Pls.’ Br. (dkt. #103) at 3.) Inexplicably, plaintiffs add that“[t]his also means only the

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four remaining parties who actually witnessed or experienced the incident . . . should be
allowed to testify concerning the issue of whether Deputy Terri Provost used excessive
force by throwing Patricia Westmore on the ground on December 27, 2013. (Id.) As a
general matter, the court would agree that personal observations would be the most
relevant evidence regarding Patricia Westmore’s excessive force claim against defendant
Provost. Yet the court can identify no legitimate reason to limit evidence to the personal
observations of the parties, especially when, according to the facts in the record at
summary judgment, other individuals including the veterinarians on site may have
witnessed Provost’s alleged use of force. Having failed to present any specific, much less
persuasive, arguments in support of excluding others’ observations to Provot’s alleged use
of force, plaintiffs’ motion will be DENIED.
II. Defendants’ Motions in Limine
A. MIL to exclude evidence regarding the circumstances surrounding the
removal or euthanasia of plaintiffs’ animals and resulting damages ((dkt.
#64) ¶ 1)
Defendants argue that the court should exclude all evidence regarding the seizure
of plaintiffs’ animals on the basis that “federal causes of action do not exist in regards to
alleged property damage or wrongful seizure of property, if the remedies available under
state law are sufficient.” (Defs.’ Opening Br. (dkt. #66) at 3.) While the two cases
defendants cite in support of their purported statement of law stand for the principle that
adequate, post-deprivation state remedies may “satisfy the requirements of due process,”
they do not foreclose plaintiffs from, as here, seeking damages for illegal seizures under
the Fourth Amendment. Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), overruled in part
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on other grounds by Daniel v. Williams, 474 U.S. 327 (1986); see also Mahnke v. Garrigan,
No. 09-cv-408-wmc, 2010 WL 2634618, at *6 (W.D. Wis. June 28, 2010). Indeed, a
number of courts have refused to apply the Parratt doctrine to Fourth Amendment
claims, since the due process concerns in which that doctrine is grounded do not overlap
with the substantive rights guaranteed by the Fourth Amendment. See, e.g., Wolf-Lillie v.
Sonquist, 699 F.2d 864, 871-72 (7th Cir. 1983). Accordingly, defendants’ motion will be
DENIED, except to exclude evidence more probative of damages to that phase of the
trial.
B. MIL to exclude evidence regarding defendant Provost’s alleged use of
excessive force ((dkt. #64) ¶ 2)
Although the court denied summary judgment on Patricia Westmore’s excessive
force claim, defendant seeks to exclude all evidence regarding defendant Provost’s alleged
use of excessive force, asserting that “[i]n order to establish use of excessive force, she
needs to establish first of all that she suffered bodily injury.” (Defs.’ Opening Br. (dkt.
#66) at 4.) Not only do defendants cite no legal authority for this conclusion, but it is
contradicted by a number of cases in the Seventh Circuit. See Chelios v. Heavener, 520
F.3d 678, 690 (7th Cir. 2008) (collecting cases suggesting that physical injury is not
required for a finding of liability for excessive force under § 1983).

Accordingly,

defendants’ motion will be DENIED.3

Of course, defendants are free to argue that the jury should infer a lack of excessive force from
plaintiffs’ failure to prove injury, or deny any award of compensatory damages for the same
reason. See Chelios, 520 F.3d at 690, (“[I]njury is a relevant factor in determining whether an
officer used excessive force[.]”).
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C. MIL to exclude evidence regarding any criminal convictions of Gina
Benson ((dkt. #64) ¶ 3)
Defendants seek an order precluding plaintiffs from introducing any evidence of
Gina Benson’s criminal convictions to impeach her character for truthfulness.

Since

neither party intend to call her as a witness, however, this motion is DENIED as moot.
D. MIL to exclude evidence regarding veterinary care of plaintiffs’ animals
((dkt. #64) ¶ 4)
Defendants next seek to exclude evidence plaintiffs may introduce regarding any
veterinary care their animals were receiving on grounds of both relevance and hearsay. In
response, plaintiffs merely direct the court to sections A and B of their brief in opposition
to defendants’ motion for summary judgment, which concern plaintiffs’ Fourth
Amendment search and seizure claims.
Still, the court does not agree with defendants that all conceivable evidence of
veterinary care that plaintiffs’ animals were receiving lacks relevance under Rule 401.
First, if credible evidence exists of regular, meaningful care of these animals, and their
overall health, it may bear on the credibility of David Hyde’s claim that exigent
circumstances existed justifying his first search, as well as the claimed need for the second
search. Second, although defendants Provost and David Hyde had a right to defer to
Szenay’s and Jahnke’s recommendations to put down plaintiffs’ donkey and seize their
horses, plaintiffs might still challenge the reasonableness of defendants’ deference, if the
evidence of ongoing, appropriate veterinary care of the animals was manifest before the
seizures.

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Of course, all of this also depends on the timing and strength of plaintiffs’
evidence of that care, and possible prejudicial impact of such evidence to the narrower
questions of the good faith and reasonableness of defendants’ actions as public officials.
Accordingly, the court will RESERVE on defendants’ motion subject to a proffer by
plaintiffs and argument by the parties at the final pretrial conference regarding the
specific evidence of veterinary care.
E. MIL to exclude evidence regarding a letter sent to plaintiffs’ counsel
((dkt. #64) ¶ 5)
Defendants seek an order excluding any reference to letters attorney Charles
Harris sent to plaintiffs’ counsel on April 11 and May 5, 2014, on 401 and 403 grounds.
While defendants provide no detail about the content of those letters, nor of their
specific concerns, plaintiffs argue in response that the letters “relate directly to
defendants’ actions in opposing plaintiffs’ efforts to petition for the return of their
horses,” as well as concerns plaintiffs expressed through counsel with regard to the
ongoing “welfare of their horses while . . . held in defendants’ custody and control, and
plaintiffs’ efforts to assert their legal and Constitutional rights.” Although substantially
less relevant, plaintiffs add that Harris also made “a false assertion” about the status of
plaintiffs’ horses in one of his letters. (Pls.’ Opp’n Br. (dkt. #91) at 4.) In light of the
court granting summary judgment to defendants on plaintiffs’ due process claim, the
issues plaintiffs identify are no longer relevant to the claims that remain for trial.
Accordingly, this motion will be GRANTED as to the liability phase of trial and
RESERVED as to the damages phase pending a proffer by plaintiffs’ counsel.
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F. MIL to exclude any argument that plaintiffs did not consent to
defendant David Hyde’s search on December 26, 2013 ((dkt. #64) ¶ 6)
Defendants further seek an order excluding plaintiffs from making any argument
that they did not consent to David Hyde’s first search of their property on December 26,
2013, claiming that plaintiffs acknowledged consenting in their complaint.

The

paragraph to which defendants cite states that plaintiffs assert they “reluctantly agreed to
show David Hyde their horses and their mammoth donkey[.]” (Amended Compl. (dkt.
#13) ¶ 18.) As explained in the court’s summary judgment decision, however, this single
allegation does not preclude plaintiffs from arguing that they did not freely consent to
David Hyde searching their property, nor that it was reasonable for Hyde to believe
otherwise. As a result, this motion will be DENIED.
G. MIL to exclude evidence regarding prior criminal charges against Gina
Benson, Tyrone Irons and David Hyde ((dkt. #64) ¶ 7)
Consistent with defendants’ motion to exclude evidence of Gina Benson’s criminal
convictions, defendants also seek to exclude any evidence of criminal charges against Gina
Benson, Tyrone Irons and David Hyde under Rule 609.

This motion appears well-

founded as to Benson and Irons, since plaintiffs do not even attempt to argue for the
admission of any charges brought against them.4
In response to defendants’ argument that David Hyde’s criminal conviction from
1979 should be excluded, however, plaintiffs assert that his “criminal record of theft”
constitutes “a dishonest act [and] has probative value in the context of plaintiffs’ claims

In addition to not calling Benson, both parties confirm that they will not call Tyrone Irons as a
witness.
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in this case[.]” While the court is highly skeptical that any Rule 609 exception allows for
the admissibility of evidence of a criminal charge after ten years, it cannot resolve this
motion without knowledge of the specific facts and circumstances surrounding the
charge(s), conviction or convictions that plaintiffs intend to introduce at trial. Therefore,
the court will RESERVE on defendants’ motion pending plaintiffs making a proffer at the
final pretrial conference of the specific facts.
H. MIL to exclude any evidence regarding the death of Blacky, plaintiffs’
horse ((dkt. #64) ¶ 8)
Defendants bring a separate motion for an order excluding evidence surrounding
the death of plaintiffs’ horse, Blacky, on the basis that plaintiffs did not disclose any
expert witness to establish the cause of Blacky’s death. In response, plaintiffs argue that
Blacky’s death is “highly relevant to plaintiffs’ illegal seizure and denial of due process
claims against defendants,” and they respond that there is no need to prove the cause of
Blacky’s death, but only that he died while in the county’s custody. As already discussed,
the court granted summary judgment to defendants on plaintiffs’ due process claim. As
importantly, plaintiffs have failed to attribute the cause of Blacky’s death to any act or
omission by the named defendants, either during the course of any alleged unlawful trespass
or Blacky’s seizure. As a result, Blacky’s subsequent death is not relevant to defendants’
alleged illegal trespress or seizure, and their motion will be GRANTED as to the liability
phase of trial. The court will RESERVE as to any arguable relevance of this proof in the
damages phase of trial.

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I. MIL to exclude any argument that 42 U.S.C. § 1983 is plaintiffs’ only
remedy ((dkt. #64) ¶ 9)
Defendants also anticipate plaintiffs arguing that 42 U.S.C. § 1983 is their
“exclusive or sole remedy,” while seeking to exclude any argument on the basis that state
remedies were adequate to afford plaintiffs due process. The court granted summary
judgment to defendants on plaintiffs’ due process claim, however, rendering this motion
moot.
J. MIL to exclude any evidence regarding insurance ((dkt. #64) ¶ 10)
Plaintiffs do not oppose this motion, and so it will be GRANTED.
K. MIL to exclude any testimony regarding plaintiffs’ feelings about the
seizure of their animals ((dkt. #64) ¶ 11)
Defendants also seek to exclude plaintiffs Patricia and Dwight Westmore from
testifying about their emotions regarding defendants’ seizure of their animals. In support
of their motion, defendants cite to Rabideau v. City of Racine, 2001 WI 57, 243 Wis. 2d
486, 627 N.W.2d 795, for the proposition that in the event the jury finds liability on
plaintiffs’ illegal seizure claim, they would only be entitled to the value of their animals
as traditional property under Wisconsin law. In response, plaintiffs cite Moreno v. Hughes,
Case No. 14-cv-13829, 2016 WL 212932 (E.D. Mich. Jan. 19, 2016), in which the
district court held that a plaintiff could seek compensatory and punitive damages for
resulting emotional distress based on the unlawful shooting of plaintiff’s dog. Id. at *4.
In support of this holding, the Moreno court also cited Henning v. Nicklow, Cause No.
1:08-CV-180, 2009 WL 3642739 (N.D. Ind. Oct. 30, 2009), in which the district court

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denied the defendants’ motion in limine “with respect to [p]laintiffs’ testimony
concerning (1) [their dog’s] characteristics ‘as a companion, pet, and watch dog’ to the
extent it assists in determining the value of the dog at the time of the loss, and (2)
[p]laintiffs’ emotional distress attributable to the actual constitutional violation, rather
than the ongoing denial of the dog’s companionship.” Id. at *5 (emphasis added).
Notwithstanding that Rabideau dealt with state law claims for damage to property
and not constitutional claims, the approach of the Moreno case is consistent with other
authority that is binding on this court. See Memphis Cnty. Sch. Dist. v. Stachura, 477 U.S.
299, 306-07 (1986) (“[C]ompensatory damages may include not only out-of-pocket loss
and other monetary harms, but also injuries such as impairment of reputation . . .,
personal humiliation, and mental anguish and suffering.”) (alteration in original)
(internal quotation marks and citation omitted); Carey v. Ciphus, 435 U.S. 247, 254
(1978) (“[M]ental and emotional distress . . . is compensable under § 1983[.]”); Hessel v.
O’Hearn, 977 F.2d 299, 301-02 (7th Cir. 1992) (“[I]f your home is illegally invaded . . .
you can seek substantial compensatory damages without laying any proof of injury before
the jury[.]”). Accordingly, if the jury finds liability on any of plaintiffs’ illegal search and
seizure claims, plaintiffs may testify about any mental or emotional injury they suffered
as a direct result of any constitutional violations. This motion will be DENIED.
L. MIL to exclude any argument that plaintiffs’ gray horse did not receive
proper care while in the custody of Ashland County (dkt. #78)
Finally, defendants seek an order excluding any argument that one of plaintiffs’
horses, sometimes referred to as “gray” or “white” and known as both “Ali” and “Guffy,”
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did not receive proper care while in Ashland County’s custody. As with any evidence
concerning Blacky’s death, evidence of the quality of the treatment plaintiffs’ horses
received after their seizure is not relevant to the liability of the named defendants,
Provost and David Hyde, who had no personal involvement in the care of plaintiffs’
animals after seizing them. Accordingly, defendants’ motion will be GRANTED as to the
liability phase of trial. The court will RESERVE as to any arguable relevance of this
proof in the damages phase of trial.
ORDER
IT IS ORDERED that:
1) Plaintiffs’ motions in limine (dkt. #72) will be GRANTED IN PART, DENIED
IN PART and RESERVED in part, consistent with this opinion;
2) Plaintiffs’ motions in limine (dkt. #103) will be DENIED;
3) Defendants’ motions in limine (dkt. #64) will be GRANTED IN PART,
DENIED IN PART and RESERVED IN PART, consistent with this opinion;
and
4) Defendants’ motion in limine (dkt. #78) will be GRANTED IN PART and
RESERVED IN PART, consistent with this opinion.
Entered this 12th day of May, 2016.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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