MILTON I. SHADUR, Senior District Judge.
After the parties' submission, followed by this Court's issuance, of the jointly proposed Final Pretrial Order, each side has tendered a set of motions in limine. That has in turn been followed by responses that have made the motions ripe for decision. This memorandum opinion and order will deal first with defendants' motions, then with those advanced on plaintiff's behalf.
Defendants' Motion 1 (Dkt. 66) seeks to bar "any evidence which might support the claim that January Kopek was not arrested with probable cause or that her arrest was in any way wrongful." But the motion is more sweeping, because it seeks to bar evidence that information provided by the Secretary of State, on the strength of which defendant Officer Edgar Gallardo ("Gallardo") arrested plaintiff Kurt Kopek's wife January Kopek, was incorrect.
But the undisputed fact that January Kopek is not a plaintiff and is not bringing a false arrest claim is not a basis for asserting that the Secretary of State's misinformation is not relevant to the claims advanced by Kurt Kopek. Any possible confusion on that matter can readily be dispelled by an appropriate explanatory jury instruction. Hence defendants' Motion 1 is denied.
Defendants' Motion 2 (Dkt. 67) seeks to preclude "any evidence as to January Kopek's feelings, pain and suffering, or injuries she claims to have felt or suffered during the course of the incident at issue in this lawsuit." Although January Kopek's internalized reactions are inadmissible (she is not a co-plaintiff, and this Court perceives no other basis for introduction of such testimony), plaintiff's response appears correct in arguing that her "reactions" in the form of her conduct and statements at the time may well be relevant. Accordingly defendants' Motion 2 is granted to the limited extent described here, but it is denied in the broader sense advanced by defendants, with more particularized rulings to be made at the time of trial.
Defendants' Motion 3 (Dkt. 68) seeks to bar evidence that Officer Gallardo's use of a taser was contrary to applicable General Orders of the Aurora Police Department, while at the same time defense counsel wants to permit testimony by the officer that would support his use of the device. Plaintiff's response accurately portrays that position as pretty much the equivalent of driving the wrong way on a one-way street (see
Defendants' Motion 4 (Dkt. 69) asks to bar the testimony of Dr. Nadia Khan, to which the plaintiff responds with a sort of "sauce for the goose is sauce for the gander" argument, pointing to plaintiff's Motion 5 that wishes to bar defendants from calling two Aurora Fire Department paramedics who assertedly had not been disclosed as witnesses in violation of Fed. R. Civ. P. 26(a). In that respect plaintiff's response at 1 accurately "recognizes that both sides make nearly identical legal arguments compelling these witnesses' exclusion at trial." Both defendants' Motion 4 and plaintiff's Motion 5 are granted.
Finally, defendants' Motion 5 (Dkt. 70) asks to bar the admission of plaintiff's Ex. 24,
Later
Thus defendants' Motion 5 is flat-out denied.
Plaintiff's Motion 1 (Dkt. 71) asks that defendants be barred from introducing evidence referring to the Aurora Police Department's internal investigation. Defendants respond by pointing to paragraphs in the First Amended Complaint ("FAC") that are framed in
Plaintiff's Motion 2 (Dkt. 72) seeks to bar the introduction of evidence as to plaintiff's unrelated mental health treatment. Here the potential for unfair prejudice that would trigger the application of Fed. R. Evid. 403 enters the picture. Assuming, as plaintiff's counsel urge, that their client "intends to assert only simple `garden variety' emotional distress damages," the motion is granted. This issue may have to be revisited at trial, but if plaintiff's counsel and their client cabin such testimony carefully, the exclusionary ruling will remain in effect.
Plaintiff's Motion 3 seeks to bar testimony about the General Orders of the Aurora Police Department. This issue has already been ruled upon (see the discussion above as to defendants' Motion 3 [Dkt. 68]). For the reasons stated there, the motion is granted.
Plaintiff's Motion 4 (Dkt. 74) asks that defendants be precluded from offering evidence or argument about their subjective states of mind during their encounter with plaintiff. Although that position is unexceptionable as to plaintiff's Fourth Amendment claim, defendants rightly respond that plaintiff's state law claims bring defendants' state of mind into play as the normal result of allegations charging defendants with willfulness, maliciousness and reckless indifference). So the motion is granted in part and denied in part, imposing a need for counsel to craft careful jury instructions.
Plaintiff's Motion 5 (Dkt. 75) asks that the testimony of the two paramedics referred to earlier in the discussion of defendants' Motion 4 (Dkt. 69) be barred. Defendants' somewhat elaborate attempted justification, based on their threshold initial interrogatory responses listing persons who "may also have discoverable information," is unpersuasive in light of the parties' ensuing discovery, during which there was no hint that the paramedics would play any role in the trial. Hence plaintiff's Motion 5 is granted.
This Court cannot go on to the next motion without voicing a sharp criticism of defense counsel for part of their argument on this one. Here are paragraphs 13 through 15 of defendants' response:
That contention blithely ignores the solidly established principle that counsel's representation of the City of Aurora does
Plaintiffs' Motion 6 (Dkt. 76) seeks to bar the testimony of two nonparties—police officer Annika Molitor and civilian Patrick Keller. Although the contact of those persons with plaintiff was limited to transporting him in a Police Department van after the incident sued upon, it is unclear whether plaintiff's testimony will extend to the assertedly unpleasant conditions of that van ride. Accordingly that motion is granted, without prejudice to its renewal at trial if plaintiff's testimony does address that subject.
Plaintiff's Motion 7 (Dkt. 77), which seeks to bar evidence that plaintiff did not pay for his hospital bill, has already been discussed at length (it was the subject of defendants' Motion 5 (Dkt. 70). As indicated in the earlier discussion, defendants' response is dead wrong in citing the
In candor, defense counsel deserves to lose twice on this one—the motion is granted.
Finally, plaintiff's Motion 8 (Dkt. 78) simply recites several areas on which the parties have no dispute. That unopposed motion is granted.
For the reasons stated in this memorandum opinion and order:
As stated earlier, one or more of the motions may have to be revisited based on further developments before or at trial.