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McGuire v. Cooper

United States District Court, D. Nebraska

August 16, 2018

CORY COOPER, TIMOTHY F. DUNNING, Individually and in his official capacity as Sheriff of Douglas County, Nebraska; and DOUGLAS COUNTY, Defendants.



         This 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.

         The 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).

         Plaintiff's Motions in Limine, Filing No. 135

         1. 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).

         The 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.

         2. 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).

         The 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.

         3. 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.

         4. 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 Cir. 2011)).

         Any 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.

         To the 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.

         5. 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.

         6. 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.” ...

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