609(a)(2), which provides: "For the purpose of attacking the credibility of a witness, . . . evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. In attempt to differentiate the crime of unlawful use of a credit card from those involving dishonesty or false statement," Logan analogizes his transgressions to the crime of shoplifting. This analogy, however, is unavailing. The crime for which Logan was convicted explicitly includes as an element the intent to defraud. See Ill. Rev. Stat. ch. 17, P5921 (Supp. 1991). Indeed, Logan represented to others that he was the holder of a specified credit card when in fact the card was not issued to him. Accordingly, we will permit defendants to impeach Logan's credibility by means of his prior conviction for the unlawful use of a credit card.
II. Punitive Damages
Defendants' Drew and O'Leary argue that Logan is not entitled to an award of punitive damages, as such an award would violate both the ex post facto clause and the due process clause of the United States Constitution. We disagree. First, as Logan poignantly notes, the ex post facto clause, U.S. Const. art. 1, § 9, cl. 3, applies only to "penal statutes which disadvantage the offender affected by them." Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 2718, 111 L. Ed. 2d 30 (1990). There can be no doubt that 42 U.S.C. § 1983, a statute intended to create "a species of tort liability," Smith v. Wade, 461 U.S. 30, 34, 103 S. Ct. 1625, 1628, 75 L. Ed. 2d 632 (1983), is not a criminal statute and does not implicate the ex post facto clause. Moreover, the due process clause does not pose a per se prohibition against punitive damages in § 1983 cases. The Supreme Court has reiterated on numerous occasions that "punitive damages are available in a 'proper' § 1983 action." See Smith, 461 U.S. at 35, 103 S. Ct. at 1629; Carlson v. Green, 446 U.S. 14, 22, 100 S. Ct. 1468, 1473, 64 L. Ed. 2d 15 (1980); Carey v. Piphus, 435 U.S. 247, 257 n.11, 98 S. Ct. 1042, 1049 n.11, 55 L. Ed. 2d 252 (1978). Indeed, a jury may consider the appropriateness of punitive damages in any case involving a "reckless or callous disregard for plaintiff's rights, as well as intentional violations of federal law." Smith, 461 U.S. at 51, 103 S. Ct. at 1637. Consequently, we deny defendants' motion to strike claims for punitive damages.
III. Admissibility of the "Not Guilty" Jury Verdict
In Count V of his amended complaint, Logan alleges that Drew's actions "in instituting false and malicious charges against Logan without just and legal cause constitute the tort of malicious prosecution under the common law of the State of Illinois." Amended Complaint P37, at 8. Those charges, two counts of battery and one count of resisting a peace officer, were resolved on September 5, 1991, at which time a jury found Logan not guilty on all counts. Defendants now seek to exclude the jury verdict on the grounds that the information is irrelevant.
It is settled law that to establish a cause of action for malicious prosecution, a plaintiff must show: "(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and damages resulting to the plaintiff." Joiner v. Benton Community Bank, 82 Ill. 2d 40, 45, 411 N.E.2d 229, 232, 44 Ill. Dec. 260 (1980) (citing Ritchey v. Maksin, 71 Ill. 2d 470, 475, 376 N.E.2d 991, 993, 17 Ill. Dec. 662 (1978)). Defendants, however, contend that the above elements are inapplicable when the claim is against a public employee. Rather, they point to the Illinois Tort Immunity Act, Ill. Rev. Stat. ch. 85, P2-208, which provides: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, unless he acts maliciously and without probable cause." Clearly, this statute provides certain immunities and defenses for local public entities and public employees. However, defendants argument that Logan's cause of action arises from, and is found in, the Tort Immunity Act itself was addressed and rejected in Hannon v. Counihan, 54 Ill. App. 3d 509, 512, 369 N.E.2d 917, 919, 12 Ill. Dec. 210 (2d Dist. 1977). See also Porter v. City of Urbana, 88 Ill. App. 3d 443, 445, 410 N.E.2d 610, 612, 43 Ill. Dec. 610 (4th Dist. 1980) ("The Tort Immunity Act is not a catalog of duties or a source of rights; it does not create new liabilities where none already exist). As such, we must look to the common-law elements of the tort of malicious prosecution to determine whether Logan can maintain a cause of action. Given the above elements necessary to sustain a malicious prosecution claim, it is axiomatic that the jury verdict in question is relevant. Accordingly, we deny defendants' motion in limine to exclude evidence of the September 5, 1991 jury verdict.
IV. Testimony by Logan's Physicians
Logan has listed four physicians as potential witnesses. In response, defendants seek to preclude any testimony from these physicians offered as expert opinion testimony. Further, defendants argue that to allow each of these four witnesses to testify as to the damage to Logan's eye would be cumulative and prejudicial.
Logan has agreed not to offer any of the testimony of these four physicians as expert opinion testimony. Accordingly, defendants' motion in limine to bar any testimony offered by these physicians as expert witnesses is granted. Respecting the potential testimony as to the damage to plaintiff's eye, Logan has stated that he does not intend to call one of the four physicians and that the others are not all eye doctors and did not treat him for eye injuries. As such, this court presently is not in a position to determine if the evidence offered by these physicians will in fact be cumulative, and we will reserve ruling on this issue. However, we caution both Logan and defendants, cumulative evidence is unacceptable in this court and will not be tolerated.
For the reasons stated above, we deny: (1) Logan's motion in limine to exclude from evidence his July 29, 1986 conviction for the unlawful use of a credit card, (2) defendants' motion to strike claims for punitive damages, and (3) defendants' motion in limine concerning the September 5, 1991 jury verdict. Defendants' motion in limine is granted as to evidence (i) of any civilian complaint other than that of the instant case, (ii) that defendants' attorneys are Assistant Corporation Counsels for the City of Chicago, and (iii) by any of Logan's physicians offered as expert opinion testimony. We reserve ruling on the issue of whether to exclude any testimony of Logan's physicians on the grounds that it may be cumulative. It is so ordered.
MARVIN E. ASPEN
United States District Judge