United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on twelve motions in limine filed
by Plaintiff, Megan McGuire, Filing No. 135, and
nine motions in limine filed, jointly, by Defendants Timothy
F. Dunning and Douglas County, Filing No. 142. Each
party submitted a brief(s) in support of their motions.
Filing Nos. 136, 137, 138, 139, 140, 141 (plaintiff's
briefs), Filing No. 143 (defendants' joint
brief). The parties also submitted reply briefs which the
court has reviewed.
motion in limine provides an important tool for trial judges
to ensure “expeditious and evenhanded management of the
trial proceedings.” Jonasson v. Lutheran Child and
Family Services, 115 F.3d. 436, 440 (7th Cir. 1997). The
motions serve as a gatekeeping function that permits a trial
judge to exclude or eliminate inadmissible evidence
submissions that ought not be presented to a jury.
Id.Not all submissions can be accurately or
sufficiently evaluated in this procedural environment.
Id.In which case, the judge can defer ruling until
during trial, when the trial judge can better understand the
impact of the evidence on the jury. Id. The Eighth
Circuit has deemed that, “[e]videntiary rulings made by
a trial court during motions in limine are preliminary and
may change depending on what actually happens at
trial.” Walzer v. St. Joseph State Hosp., 231
F.3d 1108, 1113 (8th Cir. 2000).
Motions in Limine, Filing No.
McGuire first moves to exclude non-party witnesses from trial
during the testimony of other witnesses under Fed.R.Evid.
615. Also, defendants request that their expert, Mr. John
Ryan, be present in the court room during the testimony of
Mr. Thomas Tremblay, plaintiff's expert witness. Rule 615
mandates that a non-party witness is prohibited to be in the
courtroom to hear any other witness testify if a party so
requests or the court independently orders the same.
United States v. Engelmann, 701 F.3d 874, 877 (8th
Cir. 2012). However, it is an established principle that
despite Rule 615, experts may be present in the courtroom
during the testimony of the opposing party's expert
witness, particularly where the presence of the expert is
shown to be essential to the presentation of the parties'
case. Zeigler v. Fisher-Price, Inc., 302 F.Supp.2d
999, 1017 (N.D. Ia. 2004).
court finds that under Fed.R.Evid. 615(b) the county
defendants are entitled to a representative designated to
remain present throughout the trial, even if this
representative is a witness in the trial. The court will also
permit John Ryan to attend court during the testimony of
Thomas Trembly, as the presence of the expert is essential.
The court will not permit nonparty witnesses to sit in the
courtroom during trial.
Plaintiff's second motion seeks exclusion for undisclosed
witnesses. The plaintiff argues that any witness not
disclosed under Fed.R.Civ.P. 26 should be excluded from
testifying. McGuire contends that she sought extensive
discovery about all evidence that defendants may introduce
and if undisclosed witnesses are permitted to testify, it
would be a classic case of trial by ambush. The defendants
argue they are not required to supplement the disclosed
witnesses unless the parties wish to call witnesses whose
identities were not earlier disclosed. SeeFed. R.
Civ. P. 26(e)(1)(A).
Federal Rules seek to prevent trial by ambush, therefore, any
witness whose identity was not disclosed in written discovery
or deposition testimony are excluded from trial. Fed.R.Civ.P.
26. Pasley v. United Air Lines, Inc., No. 4:10CV1128
RWS, 2011 WL 4014391 at *6 (E.D. Mo. Sept. 9, 2011). If
defendants fail to provide information or identify a witness
as required by Rule 26, defendants “will not be allowed
to use the information or witness to supply evidence . . .
unless the failure was substantially justified or was
harmless.” Id. SeeFed. R. Civ. P. 37(c)(1).
Since the witness lists were not filed at the time of this
motion, the court will deny the motion, subject to
reassertion if in fact witnesses are listed that were not
previously disclosed to the plaintiff.
Third, McGuire moves to exclude any reference to
plaintiff's counsel as being from
“out-of-town.” McGuire argues that said
information is irrelevant and would inappropriately appeal to
any jurors who tend to favor local attorneys. However, during
the process of voir dire, the court inquires whether
potential jurors know of, or have done business with the
attorneys or their firms. Ribeiro v. Baby Trend,
Inc., No. 8:12CV204, 2017 WL 1393088 at *7 (D. Neb.
April 17, 2017). It is an established principle that the
firms' locations are necessarily a part of the inquiry.
Id. Beyond voir dire, defense counsel may not refer
to plaintiff's counsel as being from
“out-of-town” during the presentation of their
arguments, without permission from the court.
McGuire's fourth motion in limine seeks to bar any party
from introducing evidence or argument about: (1)
McGuire's criminal history, including any prior
arrest(s); and (2) any substance use or abuse by McGuire. In
a supplemental brief, Filing No. 136, plaintiff
argues that her alleged prior bad acts are barred.
SeeFed. R. Evid. 404(a)(1). Defendants claim that
this information is relevant to a material issue due to the
nature of the claims asserted by McGuire. The court agrees
with the plaintiff. The types of information that defendants
want to use is remote, highly prejudicial, irrelevant to the
material issues in the case, and not permissible under
Fed.R.Evid. 404(b). See United States v. Williams,
796 F.3d 951, 958 (8th Cir. 2015) (quoting United States
v. Bassett, 762 F.3d 681, 687 (8th Cir. 2014);
United States v. Robinson, 639 F.3d 489, 494 (8th
evidence of a crime or act used “to prove a
person's character in order to show that on a particular
occasion the person acted in accordance with the
character” is not admissible. Bassett, 762
F.3d at 686; United States v. Jackson, 856 F.3d
1187, 1191 (8th Cir. 2017). Any evidence offered for purposes
against Rule 404(a)(1) is not admissible. Williams,
796 F.3d at 958 (citations and quotations omitted). Plaintiff
insists that defendants would seek to accomplish this through
the bad acts evidence they elicited against plaintiff.
Evidence of prior bad acts is admissible if, among other
requirements, “it is relevant to a material
issue” and “its potential prejudice does not
substantially outweigh its probative value.”
Id. at 959 (citations and quotations omitted).
Further, the risk of unfair prejudice to the plaintiff
substantially outweighs the probative value of this evidence.
“Though all Rule 404(b) evidence is inherently
prejudicial, the test . . . is whether its probative value is
substantially outweighed by the danger of unfair
prejudice.” United States v. Cook, 454 F.3d
938, 941 (8th Cir. 2006). The plaintiff's prior bad acts
are wholly irrelevant to the issue in this case. There is no
probative value or evidence of McGuire's prior commission
of crimes or wrongs because she is not the one on trial. At
risk of inherent danger, the defendant is barred from
introducing or referencing evidence regarding plaintiff's
prior bad acts.
extent that defendants want to introduce plaintiff's
previous experiences as an indication of her mental or
emotional health prior to this incident, such evidence is
generally not admissible. However, plaintiff concedes it
might have some bearing on her fragility at the time of the
sexual assault. Consequently, the court will defer its ruling
until such time as the evidence is presented at trial.
Next, plaintiff moves to bar prior bad acts, arrests, and
convictions of third-party witnesses as well as questioning
about their mental health care. Plaintiff argues that defense
counsel should not refer to witnesses' prior bad acts or
mental health care because it is irrelevant to the
proceedings; therefore, inadmissible under Fed.R.Evid.
404(b). Defendants argue that they intend to remain within
the scope of Fed.R.Evid. 609 when impeaching witnesses with
evidence of criminal convictions. The court generally agrees
with the plaintiff. However, the court will consider this
testimony and evidence as it arises during trial.
Plaintiff next moves to admit evidence of defendant
Cooper's contemporaneous acts of sexual misconduct,
committed between January and through April 2013. Cooper
allegedly had at least three contacts with young individuals
having sex in vehicles, according to plaintiff. Plaintiff
contends that these acts are admissible to support her
Monell claim. Thus, she argues, it is not subject to
Fed.R.Evid. 404(b)(1). Similar complaints, argues plaintiff,
shows a failure to supervise, investigate and discipline its
officers. Monell v. Dept. of Social Services of City of
New York, 436 U.S. 658, 694 (1978). In addition,
plaintiff intends to offer this evidence in support of her
claim for punitive damages. This evidence, she contends, is
admissible to show “another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or lack of accident.”