J. K. J. v. Polk County Sheriff's Department et al
Filing
210
ORDER granting in part, denying in part and reserving in part (137 in 3:15-cv-428-wmc, 138 in 3:15-cv-433-wmc) Motions in Limine by Plaintiffs J.K.J. and M.J.J.; granting in part and denying in part (152 in 3:15-cv-428-wmc, 153 in 3:15-cv-433-wmc) Mo tions in Limine by Defendant Polk County; reserving (195 in 3:15-cv-428-wmc, 196 in 3:15-cv-433-wmc) Motion in Limine to Admit Evidence Pursuant to Federal Rule of Evidence 412(c) by Defendant Polk County. Signed by District Judge William M. Conley on 1/20/2017. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
J.K.J.,
Plaintiff,
OPINION AND ORDER
v.
15-cv-428-wmc
POLK COUNTY and DARRYL L.
CHRISTENSEN,
Defendants.
and
M.J.J.,
Plaintiff,
v.
15-cv-433-wmc
POLK COUNTY and DARRYL L.
CHRISTENSEN,
Defendants.
These consolidated cases are set for jury trial, commencing January 30, 2017. In
advance of the final pretrial conference, the court rules as follows on the parties’ motions in
limine.
OPINION
I. Plaintiffs’ Motions in Limine (‘428 dkt. #137; ‘433 dkt. #138)
A. MIL No. 1: exclude all testimony prohibited by Federal Rule of Evidence
412
On its face, this motion will be granted because it simply, and therefore
unnecessarily, seeks enforcement of a federal rule of evidence.
Because the parties’
submissions raise questions as to Rule 412’s application to the evidence here, the court
will address this motion further. In relevant part, Rule 412 provides:
(a) Prohibited Uses. The following evidence is not admissible
in a civil or criminal proceeding involving alleged sexual
misconduct:
(1) evidence offered to prove that a victim engaged in other
sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
...
(2) Civil Cases. In a civil case, the court may admit evidence
offered to prove a victim’s sexual behavior or sexual
predisposition if its probative value substantially outweighs
the danger of harm to any victim and of unfair prejudice to
any party. The court may admit evidence of a victim's
reputation only if the victim has placed it in controversy.
Fed. R. Evid. 412. The rule also sets forth a procedure for determining whether such
evidence is admissible.
Fed. R. Evid. 412(c) (describing requirement of a motion and
hearing).
In their brief in support of this motion, plaintiffs explain the rule, policy behind
its enactment and the procedure defendants are required to file to seek admission of such
evidence. Plaintiffs seeks to bar any evidence or argument about their sexual history or
alleged sexual disposition, including sexual behavior, past sexual relationships, manner of
dress or speech and bodily appearance, lifestyle, tattoos or other markings, and any jobs
or professions that defendants would offer to prove alleged sexual predispositions. (Pl.’s
2
Br. (dkt. #138) 5.)1 In response to the motion, Christensen states that he does not
oppose the motion, nor could he on its face. Accordingly, this motion is GRANTED.
As for Polk County, it represents that it does not intend to offer such evidence,
however, it then adds that “depending on plaintiffs’ trial testimony, such evidence may
become relevant to prove, among other things, the plaintiffs’ credibility.”
(County’s
Opp’n (dkt. #182) 2.) Such a broad reservation of possible uses is not consistent with
the Rule, especially when the only example given of a justified use is so fraught with
problems as “credibility.” Regardless, any evidence of alleged sexual misconduct by a
victim will be excluded unless first offered outside the jury’s presence and found by the
court to fall outside the Rule.
In obvious anticipation of this approach, the County submits its own motion to
admit such evidence under Rule 412(c). (‘428 dkt. #195; ‘433 dkt. #196.) The County
contends in its motion -- filed at the time responses to motions in limine were due -- that it
may seek to introduce evidence of plaintiff J.K.J. visiting Christensen at the Amery Fire
Station on three occasions, as well as her deposition testimony that a sexual interaction
during one of those visits was not “unwelcome.” (Id. at ¶ 3.) Because the County’s
motion was filed late, the court will delay ruling on it pending argument at the final
pretrial conference. Accordingly, that motion is RESERVED.
1
Unless otherwise noted, the citations to docket entries are to the 15-cv-428 docket.
3
B. MIL No. 2: take judicial notice of the PREA and congressional findings
Plaintiffs next ask this court to take judicial notice of the Prison Rape Elimination
Act, 42 U.S.C. § 15601 et seq., and the U.S. Department of Justice’s PREA National
Standards and related commentary, dated June 20, 212 and codified under 28 C.F.R. §
115. In response, the County contends that the congressional findings are “legislative
facts, not adjudicative facts,” and as such do not “relate to the parties, their activities,
their properties, their businesses.” (County’s Opp’n (dkt. #187) 2-3.) Unfortunately,
neither side elaborates as to what specific information is or is not relevant to the issues this
jury will be asked to decide. Instead, plaintiffs refer to them generically, and the County
reiterates its argument at summary judgment that compliance with the PREA is not
compulsory. As a result, the court is unable to assess whether any of part of the PREA’s
guidelines or related commentary for preventing sexual assaults in the prison context may
be material to the jury’s consideration of plaintiffs’ claims, much less how the information
should be presented. Accordingly, this motion is RESERVED pending further discussion
with the parties at the final pretrial conference as to what exactly plaintiffs seek to
introduce to the jury.
C. MIL No. 3: find Jail Captain Nargis is a policymaker as it relates to jail
operations
Plaintiffs’ third motion in limine is a curious one.
Essentially plaintiffs seek a
finding of fact on the merits that Nargis was a “policymaker” with respect to all aspects
of jail operations.
The court already addressed this issue in its summary judgment
opinion and order, finding that Nargis was a policymaker with respect to training and
4
adopting of policies relating to the PREA, but declined to find that he was a policymaker
with respect to correctional officer supervision. (1/3/17 Opinion & Order (dkt. #160)
22-24.) The court reserved on that issue pending a more complete record as to Deputy
Sheriff Moe’s role in the supervision of correctional officers. (Id. at 24) The court sees
no basis to reconsider these decisions, although to be fair to plaintiffs, their motion was
filed before the court issued its decision on summary judgment.
In the County’s response, it regurgitates the arguments made at summary
judgment, and notes that the court left the door open for finding Moe a policymaker
with respect to supervision of correctional officers. As such, the court will RESERVE on
this motion pending factual proffers and argument at the final pretrial conference.
D. MIL No. 4: admit evidence during the damages phase that Polk County
has insurance and preclude evidence or argument that the verdict will
create a burden on Polk County’s tax base
In this motion, plaintiffs contend evidence “that Polk County has insurance is
relevant to rebut the argument from Polk County that a verdict for the plaintiffs would
place a heavy burden on local tax payers.” (Pl.’s Br. (dkt. #138) 14.) In response, Polk
County argues that any reference to insurance coverage would violate Federal Rule of
Evidence 411. The County also argues that such evidence is immaterial to any issue the
jury will be asked to decide during the liability phase.
As for damages, the County
represents that it “has no intention of making any argument about burdens on local
taxpayers.” (County’s Opp’n (dkt. #187) 8.) Accordingly, this motion is DENIED. If
the County opens the door during the damages phase of this trial by referring to, or even
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intimating about, the fiscal burden on tax payers, however, plaintiffs may submit
evidence of the County’s insurance coverage.
E. MIL No. 5: exclude letter sent from Officer Schaefer to the judge in
Christensen’s criminal sentencing
Plaintiffs further seek to exclude a letter dated July 16, 2015, from Steve Schaefer
to Judge Harrington. (Bannink Decl., Ex. B (dkt. #143-2).) In his response to plaintiffs’
motions in limine, defendant Christensen indicates that he joins in this motion.
(Christensen’s Opp’n (dkt. #179) 1.)
In the letter, Schaefer describes himself as a recently retired jail sergeant for the
Polk County Sheriff’s Department, and among other statements about the criminal case,
he urges the judge to sentence Christensen to the maximum sentence.
Plaintiffs
represent that Judge Harrington was the judge assigned to Christensen’s criminal action.
Plaintiffs seek to exclude the letter as not relevant under Rule 401, more prejudicial than
probative under Rule 403, and inadmissible hearsay under Rule 801, all of which appear
to be valid objections.
In response, the County contends that the letter is highly relevant to the core issue
of whether the County had notice of a risk of sexual assault by jail correctional officers.
Furthermore, the County argues that the letter does not constitute hearsay because it is
not being introduced for the truth of the matter asserted, but rather “as evidence the
County was not on notice of widespread sexual misconduct, and that such conduct was
not condoned or accepted.” (County’s Opp’n (dkt. #187) 9.)
6
There are a number of problems with these arguments. First, Schaefer is not a
policymaker -- or at least there has been no argument or evidence to that effect -- and
therefore his personal knowledge or lack thereof about the risk of sexual assault by jailers
is of marginal relevance to the issue in this lawsuit. Second, Schaefer explains in the
letter that he was surprised by the allegations in the criminal complaint and how such
widespread sexual activity could have remained undetected, the relevance of this
information -- unless being introduced for the truth of the matter asserted (that
Christensen’s conduct was undetected) -- appears limited at best.
Third, the letter
contains irrelevant and highly prejudicial observations bearing on criminal punishment.
Nevertheless, in its opposition, the County urges the court to reserve ruling on
this motion pending Schaefer’s testimony at trial. If anything, the fact that Schaefer will
testify at trial further diminishes the need for this letter to be introduced. Accordingly,
this motion is GRANTED as to use of this letter at trial except as impeachment or for
purposes of refreshing recollection.
F. MIL No. 6: exclude all testimony or other evidence that J.K.J. had sexual
relations with Christensen at the Fire Department
Plaintiffs seek to exclude testimony that J.K.J. engaged in sexual relations with
Christensen at the Amery Fire Department, where Christensen was the Fire Chief. This
motion essentially seeks to apply plaintiffs’ broader motion in limine number 1 under
Rule 412 to a specific factual example, except that plaintiffs also argue this evidence
should be excluded as improper character evidence in violation of Federal Rule of
Evidence 404. In addition to the County’s late-filed, counter motion, detailed above,
7
Christensen opposes this motion on the basis that evidence of a consensual sexual
relationship while J.K.J. was not incarcerated is relevant to damages, including punitive
damages. (Christensen’s Opp’n (dkt. #179) 1-2.) Because the court has already reserved
as to the County’s related motion, this motion is also RESERVED pending argument at
the final pretrial conference.
G. MIL No. 7: exclude evidence of M.J.J. receiving state benefits
Plaintiffs seek to exclude evidence that M.J.J. is receiving state benefits. Plaintiffs
contend that defendant may attempt to introduce evidence to argue that M.J.J. “is a
burden on society from receiving such benefits and that her lawsuit is another burden on
society.” (Pl.’s Br. (dkt. #138) 16.) Plaintiff contends that this evidence should be
excluded under Rule 402, 403, 404 and 405. The motion is GRANTED as unopposed.
H. MIL No. 8: exclude evidence of M.J.J. being the recipient of social
services for her children
Plaintiffs explain that M.J.J. does not currently have custody of her children.
Plaintiffs are concerned that defendant may attempt to introduce this evidence as further
proof that she is a burden on society, or alternatively, if the loss of custody of her
children comes out, to prove that she is a bad mother. This motion is also GRANTED as
unopposed.
I. MIL No. 9: admit evidence of Christensen’s untruthful character
Plaintiffs seek to introduce evidence that in 2007, Christensen denied sending an
email on three separate occasions, which he had in fact sent. Plaintiffs contend that this
evidence is relevant and admissible because it calls into question Christensen’s credibility
8
and reputation for truthfulness under Rules 401 and 608.
Specific conduct may be
relevant in the court’s discretion to impeach general testimony of Christensen’s character
for truthfulness under narrow circumstances, but certainly not admissible. Fed. R. Civ. P.
608(b).
In response, the County labels the motion as “bizarre” in light of the fact that
Christensen has “plainly admitted his sexual misconduct with plaintiffs.”
(County’s
Opp’n (dkt. #187) 10.) Moreover, the County contends that evidence of him lying
about sending an email is completely irrelevant to the claims at issue in this litigation.
(Id.) For his part, Christensen contends that his reputation for truthfulness has not been
in issue, and therefore, this evidence is not material under Federal Rule of Evidence 608.
The court agrees with defendants that the evidence is not relevant, and even if relevant,
its use is permissible only after Christensen’s truthfulness is in issue. Even so, the court
would be disinclined to allow impeachment on this isolated event.
Accordingly, this
motion is DENIED, without prejudice to plaintiffs renewing this motion if Christensen’s
truthfulness is attacked.
J. MIL No. 10: admit testimony regarding Christensen’s sexual relationship
with co-worker Lynelle Manning
Plaintiffs seek to admit testimony that Christensen and another Polk County
correctional officer had a sexual relationship. Plaintiffs contend that this evidence “is
needed to show, along with other evidence that Polk County created a culture that was
sexually charged and was deliberately indifferent to the possibility of Plaintiffs being
sexually assaulted.” (Pl.’s Br. (dkt. #138) 18.)
9
In response, the County contends that evidence of a consensual relationship
between co-workers is not relevant to plaintiffs’ claims, and even if relevant, its probative
value is outweighed by the prejudicial effect on defendants. Christensen seeks to exclude
this evidence for the same reasons. He also argues that the evidence cannot be admitted
under Rule 415 because Christensen’s sexual relationship with Manning is not a “similar
act” as his sexual interactions with plaintiffs. The court agrees with defendants that the
prejudicial effect of a sexual relationship between coworkers outweighs any arguable
probative value, especially involving adultery, as this one apparently did. Even if the
evidence could show that the jail culture was generally “sexually charged,” such evidence
is tangential at most to the core issue of whether the County was deliberately indifferent
to the serious risk of sexual assaults of inmates by jail correctional officers. Accordingly,
this motion is DENIED, except to sexual acts committed by Christensen and Manning at
the jail itself, as to which the court RESERVES pending argument.
K. MIL No. 11: preclude Dr. Michael Spierer as an expert witness
Plaintiffs seek to exclude Dr. Michael Spierer as an expert. Plaintiffs explain that
Spierer was hired to “review the raw data produced by Mr. Raderstorf,” due to conflict
issues with the County’s disclosed expert, Dr. Robbins. Polk County did not disclose
Spierer as required under Federal Rule of Civil Procedure 26(a)(2), nor does it intend to
call Dr. Spierer as an expert.
Rather, Dr. Robbins relied on Spierer’s interpretation,
incorporating his conclusions into Robbins’ expert report, as allowed under Fed. R. Evid.
703. Accordingly, this motion is DENIED as moot. The court will take up plaintiffs’
separate challenge to Dr. Robbins’ testimony later in this opinion.
10
L. MIL No. 12: find that Christensen was acting under color of state law
Plaintiffs seek a ruling from this court that Christensen was acting under color of
state law when he sexually assaulted plaintiffs. While this motion might have been a
subject of plaintiffs’ motion for summary judgment, neither the County nor Christensen
opposes it. Accordingly, the motion is GRANTED as unopposed, and the court will
remove this element from the jury instructions.
M. MIL No. 13: allow evidence and testimony regarding prior instances of
sexual misconduct within the Polk County jail (Christensen and
Jorgensen)
Plaintiffs seek to admit evidence of past allegations of sexual misconduct by jail
correctional officers.
The first incident concerned Christensen in May of 2004; the
second involved another officer Alan Jorgensen in January of 2012. The court described
the allegations and subsequent investigation for both in its summary judgment opinion.
(1/3/17 Opinion & Order (dkt. #160) 15-18.) Plaintiffs contend that this evidence is
relevant to the jury’s question of whether the County had notice of the risk of sexual
relations between correctional officers and inmates, as well as proving Christensen’s
opportunity under Rule 404(b) to assault plaintiffs.
As anticipated in plaintiffs’ motion, the County contends that these incidents are
not sufficiently similar to the allegations at issue in this lawsuit.2 While both instances
involved sexual harassment, rather than sexual relations, as the court explained in its
Christensen also opposes the introduction of the allegations surrounding Jorgensen on the basis
that the jurors may attribute Jorgensen’s alleged actions to Christensen in determining liability
and damages. While the court will not preclude the introduction of this evidence, Christensen is
welcome to submit a curative instruction addressing this possible prejudice, as well as an
instruction that any evidence of past sexual misconduct may not be considered for “propensity.”
2
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summary judgment ruling, a reasonable jury could infer from this evidence that the
County had notice of a risk of sexual assault by jailers and failed to adequately address
this risk by modifying its training, adopting sexual assault / harassment prevention
policies, and adequately disciplining correctional officers. (1/3/17 Opinion & Order (dkt.
#160) 24-29.)3
Defendants’ opposition offers no basis to reconsider that holding.
Accordingly, this motion is GRANTED.
N. MIL No. 14: allow evidence of Christensen’s disciplinary records
In keeping with their prior motion, plaintiffs similarly seek to admit Christensen’s
disciplinary records as proof of notice for purposes of demonstrating Monell liability and
as evidence of opportunity under Rule 404(b). However, plaintiffs point to no additional
incidents in Christensen’s disciplinary record that are sufficiently similar to the
allegations at issue in this case to warrant admission as to either issue. As detailed in a
footnote in the summary judgment opinion, the six incidents that are addressed span five
years (with the last three occurring within six months of the end of his employment) and
concern behavior unrelated to the sexual assaults at issue here. (1/3/17 Opinion & Order
(dkt. #160) 26 n.12) 24-29; County’s Opp’n (dkt. #189) 6-7.)
Moreover, as the
defendants both point out, plaintiffs’ attempt to couch this evidence as demonstrating
“opportunity” under Rule 404(b) makes no sense given that it is undisputed Christensen
While the court grants the motion on the basis that this evidence is relevant to plaintiffs’ Monell
claims, the court rejects plaintiffs’ argument that the evidence is also relevant to proving
Christensen’s opportunity under Rule 404(b) to assault plaintiffs, given that there is no dispute
that the sexual interactions between Christensen and plaintiffs happened.
3
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engaged in sexual conduct with plaintiffs. Hence, opportunity is also not in dispute, and
this motion is DENIED.
O. MIL Nos. 15-18: exclude testimony of Dr. Kenneth Robbins
The court will take up together four motions to exclude portions or all of Dr.
Kenneth Robbins’ expert testimony.
Plaintiffs explain that Dr. Robbins has been
retained by the County to rebut their expert’s testimony concerning plaintiffs’ respective
test results using the Minnesota Multiphasic Inventory (“MMPI”), as well as plaintiffs’
expert opinion that plaintiffs suffered psychological trauma as a result of Christensen’s
actions. Plaintiffs contend that Dr. Robbins’ testimony should be excluded because: (1)
he is not qualified to testify about the MMPI; (2) even if qualified, his testimony is
unreliable; (3) Robbins’ testimony on their expert Raderstorf’s testing is not scientific, is
unreliable and would confuse the jury and/or be a waste of time; (4) he is unqualified
generally because has no experience treating sexual assault victims; and (5) his testimony
would misled the jury, citing Rule 403. (Pl.’s Br. (dkt. #140) 3.) While most of these
criticisms go to weight, rather than admissibility, the court will nevertheless address each
in turn.
As a preliminary matter, the district court functions as a “gatekeeper” regarding
expert testimony.
Generally speaking, the court must determine whether a party’s
proffered expert testimony is relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 589 (1993); see also United States v. Johnsted, 30 F. Supp. 3d 814, 816
(W.D. Wis. 2013) (expert testimony must be “not only relevant, but reliable”).
Although expert testimony is “liberally admissible under the Federal Rules of Evidence,”
13
Lyman v. St. Jude Med. S.C., Inc., 580 F. Supp. 2d 719, 723 (E.D. Wis. 2008), it must
satisfy the following three-part test:
(1) the witness must be qualified “as an expert by knowledge,
skill, experience, training, or education,” Fed. R. Evid. 702;
(2) the expert’s reasoning or methodology underlying the
testimony must be scientifically reliable, Daubert, 509 U.S. at
592-93; and
(3) the testimony must assist the trier of fact to understand
the evidence or to determine a fact in issue. Fed. R. Evid.
702.
Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007).
Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) 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;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods
to the facts of the case.
Even with the threshold requirements laid out in Rule 702 and Daubert, however,
“[v]igorous cross-examination, presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert, 509 U.S. at 596. With these general principles in mind,
the court turns to plaintiffs’ specific criticisms.
14
First, plaintiffs seek to exclude Robbins’ testimony on the MMPI based on his
admission during deposition testimony that he is not qualified to interpret the raw data
of the MMPI. (Pls.’ Br. (dkt. #140) 7 (quoting Robbins Depo. (dkt. #115) 30).) In
response, the County sets forth Robbins’ qualifications, which among other things
include being a board certified psychiatrist, member of the clinical faculty at the
University of Wisconsin Department of Psychiatry since 1985, and current associate
clinical professor psychiatry and behavioral sciences at the Medical College of Wisconsin.
With this background, the County argues that Robbins is “imminently qualified to
perform forensic psychiatric evaluations [and] to offer opinions regarding the process of
performing and documenting a comprehensive, reliable forensic evaluation.” (County’s
Opp’n (dkt. #188) 4.)
By its response, of course, the County implicitly acknowledges Robbins’ shortcomings with respect to interpreting raw data from an MMPI test, but rather contends
that “this is unnecessary for any of the opinions he offers in this case.” Instead, relating
to plaintiffs’ second criticism -- that his testimony is unreliable because he relies on Dr.
Spierer’s interpretation of that data -- the County argues that Federal Rule of Evidence
703 permits Robbins to base his opinions, in part, on the letter reports by Dr. Spierer.
The court agrees.
Rule 703 provides generally that “[a]n expert may base an opinion on facts or data
in the case that the expert has been made aware of or personally observed.” Of course,
Robbins is not basing his opinion merely on “facts or data,” rather on interpretations of
15
data by Dr. Spierer. Fortunately, the advisory committee notes to Rule 703 provide
guidance:
In this respect the rule is designed to broaden the basis for expert opinions
beyond that current in many jurisdictions and to bring the judicial practice
into line with the practice of the experts themselves when not in court.
Thus a physician in his own practice bases his diagnosis on information
from numerous sources and of considerable variety, including statements by
patients and relatives, reports and opinions from nurses, technicians and
other doctors, hospital records, and X rays. Most of them are admissible in
evidence, but only with the expenditure of substantial time in producing
and examining various authenticating witnesses. The physician makes lifeand-death decisions in reliance upon them. His validation, expertly
performed and subject to cross-examination, ought to suffice for judicial
purposes.
Fed. R. Evid. 703, advisory committee notes to 1972 proposed rules (citations omitted).
Any uncertainty as to the applicability of this language in interpreting Rule 703
was eliminated by the Seventh Circuit in Dura Automotive Systems of Indiana v. CTS Corp.
285 F.3d 609 (7th Cir. 2002), which mainly addressed the limitations of an expert’s
reliance on other opinions, including the expert in that case, but went on to reject based
on Rule 703’s advisory committee notes the notion “that the leader of a clinical medical
team must be qualified as an expert in every individual discipline encompassed by the
team in order to testify to the team’s conclusions.” Id. at 614.
Applying this test here, the court has little trouble concluding that Dr. Robbins is
relying on opinions of an expert in the same field, psychiatry, and provided he opines
that this is the kind of information he would normally rely upon in providing medical
opinions, he may rely on Dr. Spierer’s interpretation of data. This is particularly true
since Dr. Robbins is expressing his own independent opinions, rather than merely relying
on Dr. Spierer’s interpretation of data from an MMPI test. Id. at 615. Finally, it appears
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that plaintiffs have known of Dr. Robbins’ reliance on Dr. Spierer’s interpretation for
some time. They have certainly had an opportunity to depose Dr. Spierer, and the court
would even consider plaintiffs’ being allowed to subpoena Dr. Spierer for appearance at
trial. But failing to pursue those options, Rule 703 allows Dr. Robbins’ reliance on the
analysis itself, rather than impose the expense of also calling Dr. Spierer to testify at trial.
Plaintiffs are certainly free to challenge whether Robbins’ reliance on Spierer’s
analysis is reasonable; in other words, whether Robbins had a sufficient basis to deem
Spierer’s analysis reliable. However, the court will not strike Robbins’ testimony on this
basis.
Instead, such a challenge would go the weight the jury may assign Robbins’
testimony.
See NutraSweet Co. v. X-L Eng’g Co., 227 F.3d 776, 789 (7th Cir. 2000)
(expert used data obtained by plaintiff’s hydrologists rather than data he generated
himself, creating an issue of weight, not admissibility).
Third, and related to the second challenge, plaintiffs challenge Robbins’ affirmative
testimony that their expert, Raderstorf, was not qualified to perform the MMPI testing.
While Robbins acknowledged that he, too, was unqualified to interpret data, his general
knowledge and experience of performing a qualified forensic psychological evaluation also
provides an adequate basis for him to opine on Raderstorf’s qualifications, or lack
thereof, to perform MMPI tests.
Plaintiffs further criticize Robbins on the basis that he “has never met with
Plaintiffs and is not offering any opinion on prognosis, diagnosis, causation, treatment
plan, or any other aspect of the Plaintiff’s claims.” (Pls.’ Br. (dkt. #140) 13.) Again,
plaintiffs may certainly cross-examine Robbins based on the fact that he did not examine
17
plaintiffs, but it is plaintiffs who offered Raderstorf’s opinions of psychiatric injury
consistent with their burden to prove their respective damages claims. Robbins’ role in
reviewing Raderstorf’s report and criticizing his conclusions is entirely appropriate given
his qualifications as an expert.
Fifth, plaintiffs finally offer a catch-all, duplicative argument that Robbins’
testimony should be excluded under Rule 403. The court rejects this argument for the
same reasons it rejected plaintiffs’ other challenges under Rule 702 and Daubert.
Robbins’ proposed expert opinion testimony appears far more relevant than unfairly
prejudicial and is certainly not duplicative or a waste of time. For all the reasons stated
above, plaintiffs’ motions in limine 15 through 18 are DENIED.
P. MIL No. 19: exclude Eugene Atherton’s expert testimony
Polk County retained Eugene Atherton to provide an expert opinion on the
standard of care provided at the Polk County Jail.
Plaintiffs challenge his ability to
express any opinions on best practices for prisons in sexual assaults given his admitted
lack of expertise on PREA.
In response, the County acknowledges that Atherton
admitted that he was not an expert on PREA, but contends that this does not disqualify
Atherton from testifying that the County was “not required to implement PREA
guidelines, nor does it prevent him from testifying that the policies, procedures, and
practices implemented at the Polk County Jail did not demonstrate deliberate indifferent
for the well-being of plaintiffs.” (County’s Opp’n (dkt. #190) 6.) With the exception of
opining on the County’s obligations with respect to PREA implementation, which is for
the court to decide for reasons previously explained, the court agrees with the County.
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Plaintiffs are free to cross-examine Atherton about his experience and lack of expertise
with respect to PREA, as well as furthermore offer their own expert testimony on the
PREA as setting a national standard for prevention of sexual assault in the prison setting.
Accordingly, this motion is DENIED.
II. Defendant Polk County’s Motions in Limine (‘428 dkt. #152; ‘433 dkt. #153)
A. MIL No. 1: preclude reference to PREA
In its first motion, the County seeks to exclude reference to PREA.
For the
reasons previously provided in the court’s summary judgment opinion, the court
generally rejects this motion. (1/3/17 Opinion & Order (dkt. #160) 9-12, 28.) While
the court agrees with the County that there is no private right of action and compliance
is not mandatory, PREA is still relevant in establishing a recognized standard for the
prevention of sexual assaults in the correctional setting, or at least plaintiffs are free to
provide expert testimony to that effect and so argue. As previously explained, the court
is also open to adopting a jury instruction explaining what PREA is, that it is not
mandatory and that a violation of PREA is not sufficient to prove liability against the
County, as well as the possible relevance of PREA standards to the issues before them.
Accordingly, this motion is DENIED, but the court will consider a limiting instruction as
to PREA.
B. MIL No. 2: preclude introduction of evidence regarding former jail
officer Alan Jorgensen
Next, the County moves for an order precluding the introduction of evidence
regarding former jail officer Alan Jorgensen. This motion is DENIED for the same reason
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the court granted plaintiffs’ motion in limine number 13, and for the reasons previously
provided in the court’s summary judgment opinion. Of course, the County is free to
argue, and the jury may reasonably conclude, that the Jorgensen allegations, even coupled
with the 2004 allegations concerning Christensen, were not sufficient to place the
County on notice of a serious risk of sexual assault by a jail correctional officer. The
County may also present evidence of its investigation into the Jorgensen allegations and
argue that its response was adequate. All of this is proper fodder for the jury.
C. MIL No. 3: preclude evidence, testimony and argument that Polk
County failed to train inmates
The County also seeks to preclude plaintiffs from introducing any evidence or
arguing that the County was deliberately indifferent to the risk of sexual assault by
failing: (1) to educate or train inmates adequately on their right to be free from sexual
harassment and assault; and (2) to create an appropriate mechanism for filing
complaints. Here, too, the jury may reject this theory, but the court sees no basis for
barring it. See Harris v. City of Marion, Indiana, 79 F.3d 56, 58 (7th Cir. 1996)
(“[T]he failure to select or implement necessary practices can constitute a ‘policy or
custom’ for purposes of Monell § 1983 suit, if that failure causes a constitutional
violation.”).
As plaintiffs’ describe in their opposition, this theory fits within their
overarching deliberate indifference claim based on a failure to train, supervise and/or
adopt sexual assault prevention policies. Accordingly, this motion is DENIED.
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D. MIL No. 4: preclude evidence, testimony or argument that Polk County
violated 42 U.S.C. § 1986
The County seeks an order to bar plaintiffs from asserting a claim under 42 U.S.C.
§ 1986, a negligence action for failing to prevent a conspiracy to violate an individual’s
constitutional rights under 42 U.S.C. § 1985(3). The County contends that there is no
cause of action under § 1986 because plaintiffs’ do not have a valid claim under § 1985.
While this motion would have been better raised in the County’s motion for summary
judgment, it is certainly not waived. Moreover, plaintiffs do not oppose it. Accordingly,
it is GRANTED as unopposed.
E. MIL No. 5: preclude evidence relating to the fact that Polk County may
be covered by insurance
Finally, the County seeks an order barring plaintiffs from presenting evidence that
the County is insured by Wisconsin County Mutual Insurance Company consistent with
Federal Rule of Evidence 411. This motion is GRANTED for the same reason the court
denied plaintiffs’ motion in limine number 4, absent the County opening the door.
ORDER
IT IS ORDERED that:
1) Plaintiffs’ motions in limine (‘428 dkt. #137; ‘433 dkt. #138) are GRANTED
IN PART, DENIED IN PART AND RESERVED IN PART, as described above
in the opinion.
2) Defendant Polk County’s motions in limine (‘428 dkt. #152; ‘433 dkt. #153)
are GRANTED IN PART AND DENIED IN PART, as described above in the
opinion.
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3) Polk County’s motion to admit evidence pursuant to Federal Rule of Evidence
412(c) (‘428 dkt. #195; ‘433 dkt. #196) is RESERVED.
Entered this 20th day of January, 2017.
BY THE COURT:
/s/
______________________________________
WILLIAM M. CONLEY
District Judge
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