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Silva v. State, Department of Corrections

United States District Court, W.D. Wisconsin

January 9, 2020




         This case is set for a jury trial, commencing on January 27, 2020. In advance of the final pretrial conference (“FPTC”) scheduled for January 14, the court issues the following opinion and order on the parties' respective motions in limine (“MILs”).


         I. Plaintiff's Motions in Limine (dkt. #129)

         A. MIL No. 1: limit testimony and argument about whether plaintiff's use of force violated DOC rules or policies

         Plaintiff seeks an order precluding any “analysis, opinions or conclusions about the propriety of Plaintiff's use of force or whether Plaintiff's conduct violated and Department of Corrections rules or policies, ” except for evidence or testimony reflecting opinions of or opinions that were presented to decisionmakers about plaintiff's discipline and termination. (Dkt. #129.) Defendants object to this motion on the basis that it does not adequately describe what evidence or testimony plaintiff seeks to exclude. The court agrees. Rather than deny the motion outright, however, the court will RESERVE, allowing plaintiff to articulate what specific evidence he seeks to exclude at the FPTC.

         B. MIL No. 2: preclude Correctional Officer Paul Fulton's testimony about the propriety of plaintiff's use of force or whether it violated DOC rules or policies \

         Related to the first motion, plaintiff does provide a specific example of the kind of evidence he seeks to exclude from trial. Because Fulton was not a decisionmaker as to any disciplinary or other employment actions and apparently did not personally present his opinions to the decisionmakers, plaintiff argues that his testimony is not relevant and would be unduly prejudicial under Rule 403. Defendants object to this motion on the basis that Fulton was the “only non-inmate eyewitness to the event, ” obviously other than the plaintiff, and under Federal Rule of Evidence 701, therefore, he is entitled to provide an opinion based his perception of the events that occurred.” (Defs.' Opp'n (dkt. #148) 2.)[1]

         As an initial matter, Federal Rule of Evidence 701 permits opinion testimony by lay witnesses if “helpful to clearly understanding the witness's testimony or to determining a fact in issue.” Fed.R.Evid. 701(b). Assuming it is relevant at all, the court is hard pressed to understand how Fulton's opinions as to how he perceived plaintiff's action in real time would not be helpful to a clear understanding of his testimony describing the events. Moreover, to the extent that plaintiff is claiming subsequent reports as to what Fulton perceived were inaccurate (as seems to be the case), Fulton's testimony as to what he recounted at the time would again seem relevant. Perhaps even more dispositive, however, the court assumes that plaintiff intends to testify as to what he saw and did, including his own perceptions as to whether he acted appropriately under the circumstances. If so, then plaintiff would have opened the door to Fulton's contrary impressions and perceptions. For all these reasons, Fulton's description or lay opinion as to plaintiff's actual use of force and whether his actions were inappropriate or in violation of DOC policy would appear both relevant and admissible. Because the parties' briefing on this motion is cursory and generally unhelpful as MIL No. 1 on which the court already reserved, the court will also RESERVE on this motion pending further discussion at the FPTC.

         II. Defendants' Motions in Limine (dkt. #133)[2]

         A. MIL No. 1: exclude testimony, exhibits and any reference to the decisions of the WERC

         Defendants seek to exclude any testimony, exhibits or other reference to the decisions of the Wisconsin Employment Relations Commission (“WERC”). For context only, Commissioner Jim Scott actually issued two decisions. The first decision, dated March 9, 2016, concluded that the DOC did not have “just cause” to terminate de Lima Silva and ordered his reinstatement and payment of lost wages and benefits. (WERC Order (dkt. #46-5) 4-5.) In that decision, Commissioner Scott also found as a matter of fact that de Lima Silva used “reasonable force” and “did not violate the work rules of the DOC.” (Id. at 4.) In an attached memorandum, the Commissioner detailed his factual findings, including reviewing other incidents of use of force by employees like Officer Korte that did not result in termination of employment. (Id. at 11.) The second decision was issued on Jul 28, 2016, and awarded plaintiff fees and costs.

         The parties agree that the administrative findings and investigatory file likely fall within the public records exception to hearsay. See Fed. R. Evid. 803(8). As defendants correctly point out, however, the fact that these documents may fall within an exception to hearsay neither makes them relevant under Rule 401 nor overcomes an undue prejudice objection under Rule 403. As to these issues, the Seventh Circuit instructs that the court must decide “on a case-by-case basis, what, if any [administrative] investigatory materials should be admitted at trial.” Tulloss v. Near North Montessori School, Inc., 776 F.2d 150, 154 (7th Cir. 1985). In making this determination, the court should consider “the danger of unfair prejudice to the defendant” and whether the “time spent by the defendant in exposing the weaknesses of the [administrative] report would add unduly to the length of the trial.” Id. (quoting Johnson v. Yellow Freight Sys.. Inc., 734 F.2d 1304, 1309 (8th Cir. 1984)).

         Here, the Commissioner's determination that plaintiff used reasonable force and did not violate DOC policy, along with his specific analysis of Correctional Officer Korte as a comparator, involve precisely the same terrain that the jury will be required to traverse in determining whether defendants violated Title VII and the Equal Protection Clause. Presented with this evidence, there is a significant risk that the jury will take these findings at face value and conclude, “this has already been decided and here is the decision” without conducting their own, independent review of the evidence and determination of the facts. Tulloss, 776 F.2d at 154. The court, therefore, will GRANT this motion. However, subject to appropriate ...

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