Jambois, Bob v. Ozanne, Ismael et al

Filing 157

OPINION AND ORDER granting in part and denying in part 129 Plaintiff's Motions in Limine; granting in part and denying in part 137 Defendants' Motions in Limine. Signed by District Judge William M. Conley on 9/11/18. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
BOB JAMBOIS,
Plaintiff,

OPINION AND ORDER

v.
17-cv-156-wmc
ISMAEL OZANNE, COREY STEPHAN,
MATT MOESER, and MARY ELLEN KARST
(in their individual capacities),
Defendants.
In advance of the final pretrial conference scheduled for September 11, 2018, the
court issues the following opinion and order on the parties’ motions in limine.

OPINION
I. Plaintiff’s Motions in Limine (dkt. #129)
A. References to plaintiff’s alleged performance deficiencies not addressed in
performance review, letter of expectations, notice of investigatory review, or
investigatory review.
Plaintiff contends that any allegations of performance deficiencies should be
excluded under Rules 402 and 403 if they were not addressed in his performance review,
the letter of expectations, notice of investigatory review, or investigatory review.

He

anticipates that defendants will elicit testimony about a range of minor allegations,
including inappropriate behavior with child victims and disrespectful interactions with the
police. He argues such testimony would be irrelevant and overly prejudicial.
More specifically, plaintiff argues defendants did not really hold concerns about his
treatment of child victims, or else they would have mentioned it during the supervisory

process.

Accordingly, plaintiff argues that the relevance of this concern to whether

retaliation occurred, if any, is far outweighed by the potential prejudice of its introduction
to the jury.

He makes similar arguments regarding his interactions with the police.

Plaintiff finally argues that it would be difficult for the jury to distinguish between alleged
performance issues which actually had been raised in the course of his employment and
those only raised during the course of this litigation.
Defendants argue plaintiff’s treatment of child victims was concerning to them before
his campaign to replace the current district attorney, with Karst testifying that they had
already stopped assigning Jambois such cases because of their concerns (dkt. #60 at 82:2185:9), an assertion supported by a pre-campaign email from Moeser (dkt. #77-2).
Defendants suggest this helps explain why Jambois received O’Connell’s traffic cases, as
they did not involve child victims. They also argue that some of the alleged issues between
Jambois and the Victim Witness Unit, which were discussed with him, related to his
handling of child victims. Defendants similarly point to contemporaneous emails showing
their concern with plaintiff’s interactions with the police. Conceding that some of these
performance concerns were not raised with the plaintiff, defendants maintain that they
nevertheless impacted their decisionmaking and are, therefore, relevant to assessing the
conduct at issue.
Generally, defendants appear to have the better of this argument. While such
testimony may be damaging to plaintiff’s case, it adds additional context when assessing
defendants’ motivations. Even if these issues were not raised contemporaneously, which
appears to be disputed, or raised with plaintiff, that only bears on the credibility and weight

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of the evidence, which is for the parties to argue and the jury to assess. The lone exception
may be child victims, which depending upon the nature of the concerns and the arguable
relevance may be outweighed by possible prejudice. Still, although a particularly sensitive
issue, it is undeniable that the treatment of victims, especially children, is an important
part of any prosecutor’s skill set and judgment. Therefore, an assessment of how plaintiff
performed in that role would appear admissible unless unduly prejudicial. Accordingly,
the court will deny this motion in substantial part and reserve pending a proffer of the
evidence defendants intend to offer regarding plaintiff’s treatment of child victims.

B. References to the possibility that the court might order payment of plaintiff’s
attorney’s fees and costs
As defendant does not dispute this motion, it will be granted.

C. Argumentation that taxpayers would have to pay any damages awarded or
that an award in plaintiff’s favor could cause a tax increase
As defendant does not dispute this motion, it will also be granted.

II. Defendants’ Motions in Limine (dkt. #137)
A. Opinion testimony of Michael Graveley
Defendants maintain that the testimony of Michael Graveley, the current Kenosha
County District Attorney, should be excluded, arguing that by passing judgment on
defendants’ actions, or even plaintiff’s effectiveness as a former Kenosha County District
Attorney, his testimony would improperly take on that of inadmissible expert opinion or
irrelevant and prejudicial character evidence.

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In response, plaintiff argues that Graveley should be permitted to recount a phone
call with defendant Moeser, in which he believed that Moeser was searching for pretextual
reasons to retaliate against Jambois for participating in the Jensen case. Plaintiff argues
this testimony is admissible to establish suspicious timing and, therefore, an inference of
retaliation. Plaintiff also argues that Graveley’s opinion about the propriety of the alleged
retaliatory discipline at issue is appropriate lay perception given his role as a district
attorney.
While Graveley may testify about the substance of his phone call with Moeser, as
it may bear on whether defendants were gathering pretextual justifications to discipline
plaintiff, he may not offer an opinion about why that call was made, including his
perceptions or any other opinion testimony relating to allegations of retaliatory discipline
unless Graveley was timely disclosed as an expert witness on that subject.

Indeed,

plaintiff’s theory for why Graveley’s opinion is appropriate bears a remarkable similarity
to the justifications offered by the parties for the admissibility of their expert witnesses on
the conduct of prosecutor’s offices.

B. Evidence of Dane County judiciary’s opinions about the Dane County
District Attorney’s Office and defendants
Defendants seek the exclusion of testimony about a reported dysfunctional
relationship between the judiciary and Dane County District Attorney’s Office, which
plaintiff claims helped motivate his candidacy. More specifically, defendant seek exclusion
of testimony by Shelly Rusch about comments made by Dane County judges as
inadmissible hearsay. This is surely correct and requires no further discussion. Defendants

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also argue for the exclusion of direct testimony by two Dane County Circuit Court Judges
under Rule 401, because it has no relevance to defendants’ alleged retaliation after the
election, and under Rule 403, because its real purpose is merely to cast Ozanne as a bad
administrator in order to prejudice the jury.
In response, plaintiff argues the judges’ testimony helps to prove that his speech
addressed a matter of public concern and that retaliation occurred because he revealed a
festering issue in the office. He also claims the importance of his campaign speech bears
on the need for punitive damages, reasoning that suppression of important speech deserves
greater sanction. Finally, plaintiff argues that testimony by state court judges will not wield
too much influence, as Ozanne also occupies a distinguished office.
None of these arguments are availing, and this testimony will also be excluded.
Jambois may certainly testify about (1) why he chose to seek office and (2) what he said
on the campaign trail, but the subjective opinions held by two members of the state
judiciary on this subject has no bearing on whether plaintiff’s speech concerned a public
issue, nor what sanctions are needed to protect such speech, if any. While plaintiff may
argue that his words on the campaign trail prompted retaliation by his superiors, the issue
is not whether he raised legitimate concerns in seeking office, but rather whether he faced
retaliation for doing so.

C. Testimony of Shelly Rusch
Defendants next argue that former Dane County ADA Shelly Rusch should be
limited to testimony about matters before her departure from that office, which took place
before the alleged retaliatory conduct at issue. Specifically, defendants maintain that any

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testimony Rusch could offer on retaliation are outside her personal knowledge as required
by Rule 602 and would be unreliable, lay witness opinion under Rule 701.

Indeed,

defendants stress that (1) the tenure of Rusch and Jambois only overlapped by nine days
and (2) her knowledge of the disputed events came from Jambois. Defendants further
argue that any testimony about her tenure at the office should be barred as irrelevant and
outdated. For instance, she ought not to be allowed to testify about the serious felony
unit, which did not yet exist during her tenure, nor about the quality of Ozanne’s
leadership as DA, which is not a legitimate issue in this lawsuit. Defendants similarly argue
for exclusion of Rusch’s testimony about working with Jambois in Kenosha County from
the late 1980s to 2005, as it is inadmissible character evidence and both prejudicial and
confusing. Finally, defendants ask that Rusch be barred from testifying that she was not
assigned to be a special prosecutor after her departure, because she had supported Jambois
in the election, at least according to an interpretation of a conversation with Roy Korte.
Plaintiff argues that this last issue bears on the question of retaliation because
Rusch’s alleged exclusion as a special prosecutor reveals a general animosity towards all
who supported Jambois in the election, which is probative on the question of whether
plaintiff faced similar retaliation.

Plaintiff next argues that Rush’s testimony about

plaintiff’s qualities as a prosecutor is material, because it goes to the believability of
defendants’ allegations to the contrary.

Rusch’s perceptions in this regard were not

contemporaneous with the period where the alleged misconduct occurred. Defendants also
argue that Rusch’s testimony lacks significant probative value and would invite mini-trials
about the supposed laudatory conduct of plaintiff even before the disputed events took

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place.
This court agrees that Rusch does not appear to have first-hand knowledge to testify
based on her personal knowledge about office practices after her departure. In particular,
her testimony that Jambois was an effective prosecutor before 1995 has little bearing on
his performance two decades later. Such character evidence would invite a dispute about
plaintiff’s entire career body of work, which would be irrelevant, prejudicial, and a waste
time under Rule 403. Without addressing whether Rusch’s proposed testimony about
denial of a special prosecutor role is hearsay, its connection to the question of retaliation
is too attenuated to justify the potential prejudicial effect.

D. Testimony of Roy Korte about other alleged retaliatory acts
For the reasons just discussed in the analysis immediately above, this motion will
be granted.

E. Testimony of Shaun O’Connell
Defendants next move to exclude Shaun O’Connell from testifying about matters
beyond his personal knowledge. While conceding that O’Connell may generally discuss
what he observed while working at the Dane County District Attorney’s Office,
conversations with defendants, his workload, and departure from the office, defendants
specifically argue that he should be barred from testifying about his opinion that retaliation
occurred or that Jambois was not wanted in the office after the election. They argue that
O’Connell should not be permitted to state his belief that Jambois was asked to resign, as
he was not present for the alleged conversation. First, defendants argue these opinions

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would have been formed on the basis of hearsay since he lacks direct knowledge of why
Karst re-assigned his cases to Jambois or if Jambois was asked to resign. Second, they argue
that the opinions are speculative.
In opposing this motion, plaintiff argues that O’Connell’s opinions were informed
by observations he made while working at the office -- even if some of the information was
second-hand -- and that he is well-qualified to opine about the burdensomeness of the cases
that were re-assigned to Jambois. As for his beliefs that Jambois was subjected to retaliation
and asked to resign, plaintiff argues both are permissible lay testimony because they are
based on first-hand observations of other events during his time in the office.
The court will grant defendants motion. O’Connell may not testify about matters
beyond his personal knowledge, including any ultimate conclusions that Jambois was
retaliated against, was not wanted or was asked to resign. Such testimony would be
speculative, constitute hearsay, violate the requirements for advance disclosure of expert
opinion, and invade the province of the jury. At the same time, O’Connell may testify
about how burdensome his cases that were re-assigned to Jambois if within his personal
knowledge, as well as other matters he saw or heard defendants do. If either side has
remaining concerns as to where the line is drawn between O’Connell’s admissible lay and
inadmissible expert testimony, they should make a proffer at the final pretrial conference,
rather than risk admonition before the jury.

F. Testimony of Tom Fallon about conduct after his employment at the Dane
County District Attorney’s Office, expert opinions, and opinion on motive
As plaintiff does not reference this motion in his opposition, it is assumed to be

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undisputed and will be granted.

G. Testimony of Angela Gabriele
Defendants move to exclude the testimony of Angela Gabriele, who worked with
Jambois during his involvement in the Jensen re-trial, because she has no first-hand
knowledge of how the Dane County District Attorney’s Office operates or of plaintiff’s
interactions with defendants.
While plaintiff does not appear to contest defendants’ analysis, he argues that
Gabriele can confirm details of Jambois’s involvement in the re-trial of the Jensen case
during his employment with Dane County, such as that he did not travel during work
hours to participate in it. Defendants preemptively object that this category of testimony
was not included in plaintiff’s Rule 26(a)(1) disclosures, which were limited to matters
involving the Dane County office of which Gabriele lacks personal knowledge.
The court is inclined to agree that this testimony would lack relevance unless strictly
limited to Gabriele’s personal knowledge of Jambois’s work on the Jensen case while he
was employed by Dane County. In particular, defendants have a credible argument that
they did not depose Gabriele given the limited nature of the disclosure. The testimony is
also of questionable relevance, as the question is whether defendants possessed suspicions
about plaintiff’s behavior that were not motivated by retaliatory animus, even if such
suspicions were not correct.

Nevertheless, the court will reserve judgment and allow

plaintiff to make a proffer at the final pretrial conference.

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H. Sequestering non-party, non-expert witnesses
As plaintiff does not oppose this motion, it is assumed to be undisputed and will be
granted.

I. Documents not produced in discovery
As plaintiff does not oppose this motion, it is assumed to be undisputed and will be
granted as to both sides in this case, except to the extent it pertains to documents not
requested in discovery that are used purely for purposes of impeachment or refreshing
recollection.

J. Plaintiff’s expert changing opinions or offering new opinions
As plaintiff does not oppose this motion, it is assumed to be undisputed and will be
granted.

K. Compliance with the August 31, 2017, protective order
As plaintiff does not oppose this motion, it is assumed to be undisputed and will be
granted.

L. References to fact that defendants are covered by an insurance policy or any
other form of indemnification agreement
As plaintiff does not oppose this motion, it is assumed to be undisputed and will be
granted.

ORDER
IT IS ORDERED that:

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1) Plaintiff’s motions in limine (dkt. #129) are GRANTED IN PART and
DENIED IN PART as follows:
a) plaintiff’s motion in limine # 1 to exclude references to plaintiff’s alleged
performance deficiencies not addressed in the performance review, letter
of expectations, notice of investigatory review, or investigatory review is
DENIED IN SUBSTANTIAL PART and RESERVED pending
defendants’ proffer of the evidence regarding plaintiff’s treatment of child
victims;
b) plaintiff’s motion in limine # 2 to exclude references to the possibility
that the court might order payment of plaintiff’s attorney’s fees and costs
is GRANTED;
c) plaintiff’s motion in limine # 3 to exclude argumentation that taxpayers
would have to pay any damages awarded or that an award in plaintiff’s
favor could cause a tax increase is GRANTED.
2) Defendants’ motions in limine (dkt. #137) are GRANTED IN PART and
DENIED IN PART as follows:
d) defendants’ motion in limine # 1 to exclude opinion testimony of
Michael Graveley is GRANTED IN PART and DENIED IN PART.
Graveley will be permitted only to testimony about his phone call with
defendant Moeser;
e) defendants’ motion in limine # 2 to exclude evidence of Dane County
judiciary’s opinions about the Dane County District Attorney’s Office
and defendants is GRANTED with the caveat that Jambois may testify
about why he ran for office and what he said during the campaign;
f) defendants’ motion in limine # 3 to exclude testimony of Shelly Rusch is
GRANTED;
g) defendants’ motion in limine # 4 to exclude testimony of Roy Korte
about other alleged retaliatory acts is GRANTED;
h) defendants’ motion in limine # 5 to exclude testimony of Shaun
O’Connell is GRANTED IN SUSTANTIAL PART and DENIED IN
PART, as he may testify about his personal observations in the Dane
County District Attorney’s Office and the level of burden that his
reassigned cases represented, if within his personal knowledge, but he
may not offer his opinion that Jambois faced retaliation or his belief that
Jambois was asked to resign;

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i) defendants’ motion in limine # 6 to exclude testimony of Tom Fallon
about conduct after his employment at the Dane County District
Attorney’s Office, expert opinions, and opinion on motive is GRANTED;
j) defendants’ motion in limine # 7 to exclude testimony of Angela Gabriele
is RESERVED;
k) defendants’ motion in limine # 8 concerning the sequestering of nonparty, non-expert witnesses is GRANTED;
l) defendants’ motion in limine # 9 to exclude documents not produced in
discovery is GRANTED IN SUBSTANTIAL PART and DENIED IN
PART to the extent it pertains to documents not requested in discovery
that are used purely for purposes of impeachment or refreshing
recollection;
m) defendants’ motion in limine # 10 to prevent plaintiff’s expert from
changing opinions or offering new opinions is GRANTED;
n) defendants’ motion in limine # 11 concerning compliance with the
August 31, 2017, protective order is GRANTED;
o) defendants’ motion in limine # 12 to exclude references to the fact that
defendants are covered by an insurance policy or any other form of
indemnification agreement is GRANTED.

Entered this 11th day of September, 2018.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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