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Estate of DiPiazza v. City of Madison

United States District Court, W.D. Wisconsin

May 8, 2017

THE CITY OF MADISON and JUSTIN BAILEY, GARY PIHLAJA, and CARY LEEREK, in their individual capacities, Defendants.


          WILLIAM M. CONLEY District Judge

         The court has received some 29 motions in limine in this case -- seventeen filed by plaintiff alone. (Dkts. ##118-148). Some are fairly easily resolved based on agreement of the parties, the court's prior ruling on the admissibility of expert testimony (dkt. #199), and its ruling on the discovery of Ms. DiPiazza's medical records (dkt. #196), but others present more difficult or uncertain issues that may require further clarification at the final pretrial conference. The court addresses each in turn below, starting with plaintiff's motions.[1]

         A. Plaintiff's Motions in Limine

          1. Plaintiff's motion to preclude testimony that defendants were “cleared” or “exonerated” (dkt. #118); and

         2. Plaintiff's motion to exclude evidence of defendants' commendation from liability phase (dkt. #119).

         Defendants do not oppose plaintiff's first or second motions in limine, and they are GRANTED.

         3. Plaintiff's motion to exclude results of gun inspection (dkt. #120).

         Defendants agree that the results of any inspection of the gun Ms. DiPiazza was holding after she was shot, which revealed that the gun was in working order and loaded with 15 rounds, have no relevance in the jury's assessment of what the officers reasonably perceived at the time they discharged their weapons. Defendants thus agree that this evidence would be inadmissible, unless plaintiff somehow opened the door by making Ms. DiPiazza's actual intent an issue in the case. The court agrees on both scores, although any effort to introduce the latter during the liability phase of trial is also excluded. Accordingly, the court GRANTS this motion subject to plaintiff's reopening the issue. The parties are free to enter a stipulation regarding the introduction of evidence of Ms. DiPiazza's actual intent, as defendants suggest. Barring that, the subject is closed in the first phase of trial.

         4. Plaintiff's motion to exclude prior police contacts (dkt. #121); and

          5. Plaintiff's motion to exclude character evidence learned after victim's death (dkt. #122).

         Defendants do not oppose plaintiff's fourth or fifth motions in limine and, therefore, they are also GRANTED, at least for the liability phase, unless these (purported) facts were known to the defendants before their challenged actions. See Sherrod v. Berry, 856 F.2d 802, 805 (7th Cir. 1988) (“Knowledge of facts and circumstances gained after the fact … has no place in the trial court's or jury's proper post-hoc analysis of the reasonableness of the actor's judgment. Were the rule otherwise … the jury would possess more information than the officer possessed when he made the crucial decision. Thus, we are convinced that the objective reasonableness standard … requires that Officer Berry's liability be determined exclusively upon an examination and weighing of the information Officer Berry possessed immediately prior to and at the very moment he fired the fatal shot. The reception of evidence or any information beyond that which Officer Berry had and reasonably believed at the time he fired his revolver is improper, irrelevant and prejudicial to the determination of whether Officer Berry acted reasonably ‘under the circumstances.'”).

         6. Plaintiff's motion to exclude evidence of wages, health, or life expectancy in damages phase (dkt. #123).

         This motion raises many of the same issues the court touched on in an opinion and order (dkt. #196), which denied both parties' discovery motions regarding Ms. DiPiazza's mental health records. The parties' follow-up briefing on this motion in limine sheds little additional light on the issues. Indeed, the limited case law on point, which both sides contend supports their respective positions, remains largely unhelpful, except to call into question the relevance or admissibility of any evidence of the decedent's specific health or habits to prove “loss of life” damages in a § 1983 suit brought solely under federal law by the decedent's estate. Bass by Lewis v. Wallenstein, 769 F.2d 1173, 1190 (7th Cir. 1985). Moreover, the court has neither been cited nor found legal authority holding that this evidence would be appropriate to prove “loss of life” damages in this context. To the contrary:

Section 1983 damages are considered to be appropriate as long as those damages generally effectuate the policies underlying § 1983. The fundamental policies underlying § 1983 are compensation for, and deterrence of, unconstitutional acts committed under state law. . . . The loss of life award to [a decedent's] estate is directed towards deterring any police officer who would contemplate taking the life of a person who poses no threat of harm to the officer or the public.

Graham v. Sauk Prairie Police Comm'n, 915 F.2d 1085, 1104-05 (7th Cir. 1990).

         At least for purposes of damages under § 1983, as plaintiff contends for a second time in its motion in limine, a life is a life, all lives are equal, and there is no distinguishing one life (however happy) from another (however miserable). The irony is that plaintiff is the party prepared to abide by this principle, not defendants. Accordingly, the court GRANTS this motion, again with the caveat that plaintiff may well open this door depending on how it frames its affirmative case for damages, particularly given plaintiff's plan “to introduce” Ashley DiPiazza to the jury through family and friend witnesses. What that means in practice remains unclear, so plaintiff should be prepared to clarify its plan and defend its proposal, in light of seemingly contrary legal authority.

         If a life is a life under § 1983, and its purpose is not to discriminate, but merely to protect, and deter the unlawful taking of life, then the question remains what relevance there is in specific evidence of who Ashley DiPiazza was as a person, or the kinds of things she liked doing, even at the damages phase.

         7. Plaintiff's motion to strike defendants' proposed damages experts (dkt. #124).

         On March 8, 2017, defendants disclosed two, “non-retained” experts on damages under Fed.R.Civ.P. 26(a)(2)(C), but for neither -- an emergency room doctor and a physician's assistant, both of whom apparently treated Ms. DiPiazza for an injury on one occasion -- did defendants disclose the subject matter, much less “a summary of facts and opinion to which [they are] expected to testify.” To the contrary, plaintiff has submitted documentation suggesting that the physician's assistant was not even aware that she was listed as a witness for this case (nor even aware of this case), and she has never spoken with defendants' counsel. Defendants have effectively acknowledged their failure to comply with the basic disclosure requirements of Rule 26 necessary to allow these two individuals to testify, by virtue of filing no response to this motion in limine. Accordingly, the motion is GRANTED, and defendants' two, so-called “non-retained damages experts” are precluded from expressing any expert opinions at trial.

         8. Plaintiff's motion to exclude information unavailable to officers from 911 call (dkt. #133).

         Plaintiff moves to exclude evidence of information provided during the 911 call unless it was relayed to the officers responding to the reported disturbance on May 18, 2014. Specifically, they move to exclude a statement by Ms. DiPiazza's boyfriend to the 911 operator that he was “a little afraid, really afraid, ” since there is no evidence that this was relayed to the officers dispatched to the scene. Defendants respond that this statement was not necessary for the officers (or any reasonable person) to conclude that the boyfriend was, in fact, afraid of his gun-wielding girlfriend, but that misses the thrust of the plaintiff's eighth motion. Indeed, defendants offer no direct response or reason why the boyfriend's statement itself is relevant and admissible. Without evidence that any statement made to or by the 911 dispatcher was relayed to at least one of the responding officers, it is not relevant to their assessment of the situation. Graham v. Connor, 490 U.S. 386, 396 (1989) (issue of reasonableness of defendants' action is limited to what they knew at the time, under the totality of the circumstances as they perceived them objectively). Thus, plaintiff's motion is GRANTED, and defendants are barred from introducing this or similar evidence, unless they can show that it was available to and known by the officers responding to the scene at that time.

         9. Plaintiff's motion to preclude referring to Ms. DiPiazza as “criminal” or “suspect” (dkt. #136).

         Defendants do not oppose this motion. The court agrees with plaintiff that referring to Ms. DiPiazza as “the criminal” or even “the suspect” during trial poses a risk of unfair prejudice. Similarly prejudicial would be for plaintiff to refer to her as the “victim.” Accordingly, the motion is GRANTED. Instead, she should be referred to at trial as “Ms. DiPiazza, ” “DiPiazza, ” “the deceased, ” or “decedent.”

         10. Plaintiff's motion to exclude hypothetical, “worst case” evidence (dkt. #138).

         Plaintiff moves to preclude any defense witness from speculating about hypothetical, “worst case” training scenarios. This is a bridge too far for plaintiff. Certainly, no witness will be permitted to testify based on unfounded speculation; both fact and expert witnesses must limit their testimony to matters within their knowledge, experience, or expertise. As defendants point out, however, witnesses are permitted to make inferences reasonably based on their knowledge and experience. In particular, the court agrees with defendants that the Seventh Circuit's decision in Nelson v. City of Chicago, 810 F.3d 1061 (7th Cir. 2016), is of no use to plaintiff on this issue. In that case, one of four officers involved in a traffic stop was allowed to testify about what they probably or usually would have done at a traffic stop, even after all four officers had admitted to having no actual memory of the challenged traffic stop. The Seventh Circuit found this testimony was too speculative to be admitted. Id. at 1074-75.

         Here, in contrast, plaintiff's main objection seems to be to defendant Pihlaja's testimony about a past training scenario, where he confronted a (fictional) suspect who emerged from a car and put a gun to their own head. While the relevance of this testimony, should it be introduced, is limited, the Nelson decision does not preclude its use to illustrate how the training informed Pihlaja's understanding of the kind of threat Ms. DiPiazza presented. The court is also not persuaded that the probative value of this evidence is substantially outweighed by a danger of unfair prejudice, confusing the issues, or misleading the jury. Fed.R.Evid. 403.

         Plaintiff also objects to Captain Huth's expert testimony on this same topic, though it is not clear if the basis of the objection is speculation, lack of foundation, or improper endorsement of the officers' version of events. Consistent with the court's ruling on plaintiff's Daubert motion, Huth may not opine on Pihlaja's (or any witness's) credibility, but he may assume certain facts in rendering his opinions, as long as they are supported by the record, and he may discuss perceived deviations or adherence to accepted training and practice, as well as point out facts in evidence (or expected to be put in evidence) that contradict plaintiff's version of the events. Estate of Robinson, 2017 WL 564682, at *10; see also Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 2228 (2012) (“Under settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert.”).

         With the qualification that defendants may not present testimony based on unfounded speculation (or testimony supporting an officer's independent judgment to employ force not properly based on accepted police practice and training or real world events), worst-case hypotheticals may well be admissible. Accordingly, plaintiff's motion to exclude is DENIED.

         11. Plaintiff's motion to exclude opinion testimony about what Ms. DiPiazza would have done (dkt. #140).

         This motion raises similar issues as motion in limine #10. As defendants acknowledge in their opposition, no one can say for sure what Ms. DiPiazza would have done if she had not been shot, and no witness will be permitted to testify as if they have that knowledge. Of course, the officers may testify as to what they observed, any inferences they drew from their observations, what possibilities they anticipated, and what options or contingencies they considered. As discussed, “police practice” experts may also assume facts that are or will soon be supported in the record, and they may apply their expertise to those facts to opine on whether the officers' conduct comported with contemporary police tactics, training, and customs, including any reasonably identifiable risk factors. With those caveats, plaintiff's motion to exclude the narrow category of testimony identified (about what “would” have happened to Ms. DiPiazza) is GRANTED.

         12. Plaintiff's motion to exclude testimony regarding “reactionary gap” principle (dkt. #141).

         This motion raises similar issues to plaintiff's motions in limine ##10 and 11, having to do with the “reactionary gap” principle, which there appears no dispute was an aspect of defendants' police training. Generally, this principle advises officers to consider the danger of a delayed response to a threatening action, because even a quick reaction to an initial, unanticipated action will result in an inevitable, if short, time lag (hence, the “gap”). For the reasons already explained, this evidence is also admissible, assuming it is introduced with proper foundation by an appropriate witness. More precisely, while the officers may not speculate about what they “would” do in a general, hypothetical situation -- disconnected from the actual facts of this case, Nelson, 810 F.3d at 1074-75 --they may describe how their observations, inferences, and actions in this case were informed by their training. Similarly, experts may do the same, subject to the boundaries already explained above. For these reasons, the court GRANTS plaintiff's motion in limine #12.

         13. Plaintiff's motion to exclude “suicide by cop” theory (dkt. #142).

         To the extent plaintiff objects to Captain Huth's explanation of a so-called “suicide by cop” theory in his deposition, that opinion and testimony is excluded because it appears superficial, unsupported and unfounded as described. More importantly, it was not disclosed in Huth's expert report as required under Rule 26(a)(2)(B). (See dkt. #199, Op. & Order, at 11-12.) As for the defendant officers' own purported “knowledge of suicide-by-cop risks, ” defendants are less than clear as to the scope of their training or expertise in this subject, beyond a seed planted in the backs of their minds that the armed subject might have a death wish. Although the defendants may certainly testify that this possibility was part of their own thought process, the court is skeptical that the existence of a formal “theory” can be admitted, especially without an expert to explain it properly. Nevertheless, the court will RESERVE on this motion until the final pretrial conference, giving defendants an opportunity to make a proffer as to the relevance of such a theory to defendants' decision-making.

         14. Plaintiff's motion to inspect ballistic shield (dkt. #144).

         Since defendants do not oppose this motion, it is GRANTED, and the jury will be given an opportunity to inspect the ballistic shield during deliberations provided ...

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