Opinion
Case No. 97 C 4568
January 23, 2003
RULINGS ON MOTIONS IN LIMINE
The following are the court's rulings on the parties' motions in limine. In many instances, the court's unfamiliarity with the parties' theories of their case, coupled with the superficiality of most of these motions and the related papers, has made a considered ruling impossible. Denials of motions in limine are without prejudice to the movant's raising the issue by means of an objection at trial. Grants are binding unless a party, outside the presence of the jury, requests that the court reconsider the ruling.
Motion in Limine to Bar the Parties from Referring to Evidence Mutually Objected To
This is plaintiffs' report of the motions filed by defendants to which they have no objection. Why it is called a motion is a mystery. However, being a motion, it must be ruled on (or, given the technocratic and bureaucratic world in which the court operates, it will generate reports to Washington, and directives for this court to report on its status). Accordingly, it is granted.
Motions of Plaintiffs
1. Granted. The parties are ordered to instruct their witnesses not to discuss their testimony with persons who have not yet testified.
2. Granted without opposition.
3. Denied. The court does not know enough about the parties' respective theories of the case at this point to make a pretrial ruling.
Motions of Defendant Fred Guerra
1. This motion appears to request a ruling that the court will endeavor to admit only such evidence as is relevant to the remaining claims in this case. To this extent, it is granted.
2. This motion, as many of defendants' motions, was drafted and briefed prior to the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002). Morgan holds that "the entire hostile work environment encompasses a single unlawful employment practice," "the incidents comprising a hostile work environment are part of one unlawful employment practice," and "the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment." Id. at 2075. Both for this reason and because evidence of acts occurring outside the statutory period may be admissible to show intent, the defendants' repeated requests to bar all evidence of incidents outside the statutory period are rejected. This motion is denied.
3. It is difficult for the court to understand what this motion seeks. It lists the remaining claims against defendant Guerra and then asks for plaintiffs to be barred from offering any evidence or arguments concerning them. It may be that this motion is seeking summary judgment on a basis not previously considered by the court or seeking reconsideration of summary judgment rulings previously made. In any event, whatever it seeks, a motion in limine is not the appropriate vehicle for asking that plaintiffs be barred from offering any evidence in support of their claims. It is denied.
4. This motion is denied. Some of the evidence sought to be barred may well be relevant. Without knowing what the evidence will be, the court cannot provide such a ruling.
5. In this motion, defendant Guerra seeks to exclude from evidence a report of an internal Sheriff's Department investigation of plaintiff Huff's discrimination claims. In the course of preparing this report, two Sheriff's officers, Sergeants McQuinn and Wieczorek, conducted numerous interviews of parties in this case and other persons. The interviews were taped and transcribed but were not under oath. Guerra seeks to exclude the report, except for statements by the parties themselves, on grounds of hearsay.
In Beech Aircraft Corp. v. Rainey, 109 S.Ct. 439 (1988), the Supreme Court opted for a "broad" reading of Rule 803(8)(C), concluding that factually based conclusions and opinions are within the reach of the Rule. "[N]either the language of the Rule nor the intent of its framers," the Court held, "calls for a distinction between `fact' and `opinion'. . . ." Id. at 449. "Rather than requiring that we draw some inevitably arbitary line between the various shades of fact/opinion that invariably will be present in investigatory reports," the Rule instructs that reports setting forth factual findings shall be admitted. Id. All that should be excluded are reports not based on factual investigation (because those reports do not contain factual findings) and reports, or portions of reports, that are insufficiently trustworthy. Id.
Guerra's motion cites primarily pre-Beech cases and does not state or discuss the relevant law. Insofar as defendant is relying on Quiles v. Sikorsky Aircraft, 84 F. Supp.2d 154, 162 (D.Mass. 1999), he appears to be relying on a portion of the opinion dealing with hearsay contained in witness affidavits, not in government reports.
The motion is denied.
6. This motion seeks the dismissal of one of plaintiff Lewis' claims, contending that it is contradicted by deposition testimony, is outside the limitations period and does not constitute an adverse action. As was true in the case of Guerra Motion #3, this motion appears to be a motion for summary judgment (or a motion to reconsider summary judgment rulings) made in the form of a motion in limine, rather than complying with the local rules governing summary judgment procedure. Deciding claims on the merits is not a proper office of a motion in limine. It is denied.
7. This motion is denied for the reasons stated with respect to Guerra Motion #2.
8. This motion seeks to exclude three categories of evidence: Guerra's suspension from duty as the result of charges filed against him with the Sheriff's Department by Huff; Guerra's alleged falsification of activity reports to make it appear that he was present during operations when he was not; and Guerra's alleged inquiry into whether Huff's husband used her service revolver in committing suicide. Guerra argues variously that these matters are barred by the hearsay rule, are irrelevant and are inadmissible Rule 404(b) evidence. Plaintiffs respond that the charges are evidence of a basis for animus against plaintiff; the falsification of reports is admissible under Rule 608(b) and the suicide inquiry is further evidence of animus. The motion is granted as to the disciplinary charges, based on Guerra's assertion (which, lacking any other evidence, the court accepts as true) that the Merit Board proceedings were not commenced until Guerra had transferred out of MEGCC and no discipline was imposed on him until after he transferred out. The falsification of records evidence is admissible subject to the strictures of Rule 608(b) and the motion to that extent is denied. As to the suicide inquiry, Guerra says his objection is based on the fact that Huff's knowledge of this remark comes entirely from Lewis, who denies it, as does Guerra. The evidence is admissible if plaintiff can lay a proper foundation for it, which it appears she will be unable to do. This motion is accordingly granted in part and denied in part.
9. It is impossible to determine from plaintiffs' response whether they have documents, which they have withheld, or have no documents. At this point, there is no excuse for plaintiffs' failure to make this clear, and this court has too much to do to play guessing games with the parties. The motion is granted.
10. The basis for this motion is not entirely clear. It may be equating actual damages with lost wages, as if lost wages are the only kind of compensable damages recoverable in this action, or it may be seeking to exclude from evidence damages not attributable to this defendant, even though other defendants will be on trial. In any event, no basis for granting the motion emerges from the papers (at least no basis that the court understands) and it is accordingly denied.
11. Insufficient information is provided to allow an informed pretrial ruling; indeed, defendant concedes that he does not know what evidence of this sort plaintiffs will attempt to offer. The motion is denied. These issues will be addressed in context at trial.
12. Granted without opposition.
13. Granted without opposition.
14. As plaintiffs and defendants appear to agree, the evidence defendants seek to exclude, that Guerra and/or Douvris are being indemnified for their defense costs and/or any judgment, is admissible if and only if these defendants attempt to show financial inability to satisfy a judgment. The motion is granted unless defendants so open the door.
15. The motion is denied. However, defendants should not have to guess about what damages plaintiffs intend to seek. Within 7 days of the date of this order, plaintiffs must provide the defendants with a clear statement of the damages sought by each plaintiff as to each defendant.
Motions of Defendant Andy Douvris
1. Granted to the extent that the court will endeavor to admit only evidence relevant to the remaining claims in the case.
2. Denied. See ruling re: Guerra Motion #2.
3. Denied. The motion is vastly overbroad in that it would bar relevant evidence of intent, as well as evidence relevant to plaintiff Huff's remaining claims. Insofar as the motion seeks to have the complaint purged of dismissed claims, it is denied, because the court has no intention of sending the complaint to the jury.
4. Denied. The court will rule on relevancy objections as they arise at trial.
5. Denied for the same reasons as Douvris' Motion #4.
6. Denied for the same reasons as Douvris' Motion #4. The theory behind these motions is clearly wrong. The fact that some claims have been dismissed does not mean that evidence related to those claims is inadmissible if it is also relevant to other claims.
7. Denied. See ruling on Douvris Motion #6.
8. This motion may be a request for reconsideration of a summary judgment ruling, in which case it is in improper form and is denied. See also ruling on Guerra Motion #2. The motion is denied.
9. The motion is denied. If defendant can show that plaintiff Huff has withheld evidence in discovery, that is a sanctionable discovery violation and should be brought to the attention of the court. This motion may be suggesting that this is what defendant believes has occurred or it may be arguing, as plaintiffs believe, that evidence not personally known to plaintiffs is inadmissible. The motion is too vague about what it seeks to permit a ruling.
10. Denied. See ruling on Guerra Motion #2.
11. Denied. See ruling on Guerra Motion #2.
12. Granted, subject to the limitations set forth in the ruling on Guerra Motion #14.
13. Denied. The court will rule on such relevancy issues as they arise at trial.
14. Insofar as defendant is arguing that plaintiff cannot testify as to any upset or distress she experienced as an alleged result of defendants' conduct, the motion is denied. The line between permissible description of the problems one experiences and medical diagnosis is admittedly difficult to draw in the abstract. Plaintiff can certainly describe what she physically and mentally experienced without crossing the line. The motion is denied. However, for the reasons stated with respect to Guerra's Motion #9, plaintiffs will not be permitted to introduce previously withheld evidence. Indeed, if plaintiffs have medical evidence which has been requested but which has not been produced, this matter should be brought to the court's attention at once.
15. Granted without opposition.
16. The papers are too vague to permit any ruling at this time. The court does not know what precisely defendant is seeking to exclude. The motion is denied.
17. Same ruling as Douvris Motion #12.
18. Defendant seeks to exclude evidence of disciplinary action taken against him and defendant Guerra in response to plaintiffs' complaints. Plaintiffs respond that this evidence is relevant to show "the chain of command within the department and the individual defendants' supervisory authority." Defendant responds that this evidence may be admissible against the Sheriff in connection with an Ellerth defense but fails to suggest how, in a joint trial, the evidence can be excluded if it is relevant to another defendant's defense. Plaintiffs' justification for the admission of this evidence is absurd: surely there are less inflammatory ways to prove the chain of command. Nevertheless, if the evidence is key to another party's defense, the court should not grant this motion. The motion is denied without prejudice. However, before trial, the court would welcome the parties' suggestions as to how this evidence should be handled, assuming, as appears to be the case, that it has no relevance other than to establish matters unlikely to be disputed and to establish a defense the Sheriff may advance. If the Sheriff does not wish to offer the evidence, the motion will be granted.
19. This motion seeks the exclusion of the same report discussed in the ruling on Guerra Motion #5. Douvris argues that the entire report should be excluded, except "for the limited purpose of showing that the Sheriff's Department conducted said investigation and for impeachment of the parties by prior inconsistent statements," Motion at 1, because it is untrustworthy. Douvris argues that all of the report's allegations that he used the word "nigger" came from codefendant Guerra, who has a motive to implicate Douvris and who in fact has given inconsistent testimony on this subject.
Douvris misconceives the meaning of Rule 803(8)(C). The trustworthiness that the rule requires is not the trustworthiness of every source of information but the trustworthiness of the report as a whole. The rule is premised on a presumption that the public officials conducting the investigation in question performed their duties properly, without any motive or interest on their part other than to prepare an accurate report. See, e.g., In the Matter of Munyan, 143 F.R.D. 560, 563 (D.N.J. 1992). The fact that an unbiased investigator took statements from arguably biased witnesses is not a basis for excluding the report, since, absent evidence to the contrary, the investigator is presumed to have sufficient competence and impartiality to weigh such evidence properly. See Chesler v. Trinity Indus., Inc., 2002 WL 1822918, at *2-3 (N.D.Ill. Aug. 8, 2002). Klein v. Vanek, 86 F. Supp.2d 812 (N.D.Ill. 2000), on which Douvris relies, excluded a report because its conclusion was a credibility finding based on weighing the credibility of an individual the investigator had been unable to interview completely against the credibility of individuals the investigator had not interviewed at all. The problems which led to the exclusion of the report were problems with the manner in which the investigation had been conducted, problems which seriously compromised the reliability of the report. Similarly, in Faries v. Atlas Truck Body Mfg. Co., 797 F.2d 619 (8th Cir. 1986), a pre-Beech case on which Douvris relies, the court held that it was improper to admit a police report which contained opinions based on a grossly incomplete accident scene investigation and an interview with only one of the two parties to the accident in question; these defects went directly to the reliability of the investigation on which the report was based. It is Douvris' burden to show that the report is untrustworthy, see, e.g., Avondale Indus., Inc. v. Bd. of Comm'r, 1996 WL 280787, at *2 (E.D.La. May 24, 1996), and his argument that one of the interview subjects had a motivation to lie is insufficient to carry it.
The cases make clear that investigative reports on occasion should be redacted to exclude portions which are inadmissible for reasons other than their inclusion in the report or particularly prejudicial. See, e.g., Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1310 (5th Cir. 1991). Should the parties, prior to trial, want to renew this motion with more specific attention to portions of the report they find particularly troublesome, the court will consider a motion directed at such specific portions. The present motion seeks to exclude too much, with an inadequate basis for doing so, and it is denied.
Motions of Defendant Michael F. Sheahan
1. Granted without opposition.
3. The motion is granted. Plaintiff has not suggested any reason why Douvris' current employment is relevant.
4. The motion is denied. The court does not know enough about this evidence, or the reasons for which it may be offered, to provide a pretrial ruling. The court will rule on these issues as objections are made at trial.
Frankly, the court does not understand this motion.
5. The motion is denied. See Ruling on Guerra Motion #2.
6. The motion is denied. See Ruling on Guerra Motion #2.
7. The motion is denied. See Ruling on Guerra Motion #2.
8. The motion is denied. See Ruling on Guerra Motion #2.
9. The motion is denied. See Ruling on Guerra Motion #2.
10. The motion is denied. See Ruling on Guerra Motion #2.
11. The motion is denied. See Ruling on Guerra Motion #2.
12. The motion is denied. See Ruling on Guerra Motion #2.
13. The motion is denied. See Ruling on Guerra Motion #2.
14. The motion is denied. The foundation issues will be addressed as they arise at trial. With respect to the other issues raised in this motion, see ruling on Guerra Motion #2.
15. Denied for reasons set forth in the ruling on Sheahan Motion #14.
16. The motion is denied. See Ruling on Guerra Motion #2.
17. The motion is denied. See Ruling on Guerra Motion #2.
18. The motion is denied. The hearsay and foundation issues discussed in this motion will be addressed in context at trial.
19. The motion is denied. See Ruling on Guerra Motion #2. Evidence of racist remarks may be relevant to intent even if plaintiff was unaware of the remarks at the time they were made.
20. The motion is denied. See Ruling on Guerra Motion #2. Plaintiff will not be allowed, however, to elicit Guerra's opinion of Douvris' motivation without a satisfactory foundation; foundation issues will be addressed in context at trial.
21. The motion is denied. See Ruling on Guerra Motion #2.
22. The admissibility of this testimony, vel non, will depend to a large extent on the foundation that is offered for it. Accordingly, the court will rule on these matters as they arise at trial. The motion is denied.
23. The motion is denied. See Ruling on Sheahan Motion #22.
24. The motion is denied. See Ruling on Guerra Motion #2.
25. Granted without opposition.
26. Plaintiffs must-no later than 10 days from the date of this order-disclose to defendants the names of any comparables, and a description of plaintiffs' theory of comparability in each instance. Within 7 days of such disclosure, defendants may renew this motion. The determination of this motion will depend on whether plaintiffs failed to provide requested discovery, and whether defendants will be prejudiced by the admission of any such evidence not previously disclosed. The motion is denied without prejudice to its renewal pursuant to this schedule.
27. Granted without opposition.
28. This motion is granted unless plaintiffs can demonstrate that the Sheriff has relevant and material evidence to give which is not equally available from other sources or by means of a stipulation. If this defendant wishes to avoid being called as a witness, he should cooperate with plaintiffs to try to reach stipulations that will make his appearance unnecessary.
29. The motion is denied. Plaintiff Huff may state her opinion on this matter. The court points out that if plaintiff Huff did not believe the individual defendants harbored racial animus, she would not have filed this suit, as will be obvious to any non-comatose juror.
30. The motion is denied provided that plaintiff Huff, within 14 days of the date of this order or such other time as the parties mutually agree upon, produces this witness for deposition.
31. It is unclear whether defendant is contending that indemnification evidence is inadmissible, or that evidence of indemnification by Cook County should be excluded as erroneous. As set forth in ruling on Guerra Motion #14, there is one condition that would make indemnification evidence relevant. Barring the occurrence of that condition, the motion is granted.