United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
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 in Limine
1. Plaintiff's motion to preclude testimony that
defendants were “cleared” or
“exonerated” (dkt. #118); and
Plaintiff's motion to exclude evidence of defendants'
commendation from liability phase (dkt. #119).
do not oppose plaintiff's first or second motions in
limine, and they are GRANTED.
Plaintiff's motion to exclude results of gun inspection
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.
Plaintiff's motion to exclude prior police contacts (dkt.
5. Plaintiff's motion to exclude character
evidence learned after victim's death (dkt.
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
Plaintiff's motion to exclude evidence of wages, health,
or life expectancy in damages phase (dkt. #123).
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
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
Graham v. Sauk Prairie Police Comm'n, 915 F.2d
1085, 1104-05 (7th Cir. 1990).
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.
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
Plaintiff's motion to strike defendants' proposed
damages experts (dkt. #124).
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.
Plaintiff's motion to exclude information unavailable to
officers from 911 call (dkt. #133).
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.
Plaintiff's motion to preclude referring to Ms. DiPiazza
as “criminal” or “suspect” (dkt.
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
Plaintiff's motion to exclude hypothetical, “worst
case” evidence (dkt. #138).
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.
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.
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
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.
Plaintiff's motion to exclude opinion testimony about
what Ms. DiPiazza would have done (dkt. #140).
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
Plaintiff's motion to exclude testimony regarding
“reactionary gap” principle (dkt. #141).
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
Plaintiff's motion to exclude “suicide by
cop” theory (dkt. #142).
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.
Plaintiff's motion to inspect ballistic shield (dkt.
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 ...