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January 31, 2000


The opinion of the court was delivered by: Kennelly, District Judge.


In this action under 42 U.S.C. § 1983, plaintiff James Klein claims that he was wrongfully beaten by Edward Vanek, a Chicago police officer, on July 9, 1995. The Court previously denied Vanek's motion for summary judgment. Klein v. Vanek, No. 96 C 5834, 1999 WL 966968 (N.D.Ill. Oct. 5, 1999). The case is set for trial on January 31, 2000. At the final pretrial conference on January 27, 2000, the Court heard argument on Klein's motion in limine and made oral rulings. The purpose of this Memorandum Opinion is to make a record of the basis for the Court's rulings.


On the evening of July 9, 1995, two Chicago police officers, Vincent Krocka and Steven Composto, picked Klein up after Sue Vanek, the wife of defendant Vanek, also a Chicago police officer, called the police to report that Klein had been stalking her. Specifically, she claimed that Klein had shown up outside her office and had made a threatening gesture. There had been prior incidents between Klein and Sue Vanek, which at one point had led to criminal charges resulting in a guilty plea to a misdemeanor. However, Klein was not arrested or charged on the night of July 9. Instead, Krocka and Composto questioned him for approximately a half hour and then drove him to a parking lot near the intersection of Touhy and Lehigh, which was a few blocks from where he was staying. Klein says that the officers told him to get out of the car; the officers claim that this is where Klein asked to be let out. Just after Klein got out of the squad car, he was approached by a man whom he identified as Vanek. Vanek hit him repeatedly with a golf club while another man, whom Klein could not see, hit him from behind. Klein says that after they finished beating him, the men drove away in a Cadillac. Another witness also saw the beating and the Cadillac but could not identify Klein's assailants. Within a day, Klein had made a complaint against Vanek, Krocka, and Composto to the Chicago Police Department's Office of Professional Standards, which began an investigation on July 11. A few days later, Sue Vanek pressed charges against Klein. He eventually pled guilty to a misdemeanor assault charge.

About one year later, Klein filed this lawsuit against Edward Vanek, Sue Vanek, Krocka, and Composto under 42 U.S.C. § 1983, seeking compensation for the injuries he had suffered in the beating. Krocka and Composto settled with Klein, agreeing to pay him $35,000 in return for dismissal of Klein's claims against them. We granted summary judgment in favor of Sue Vanek, leaving Klein's claim against Edward Vanek as the only claim remaining for trial.


A. Testimony concerning "stalking" incidents

Klein has moved to bar Sue Vanek from testifying at trial, claiming that she has nothing to say that is relevant to the issues in this case. Defendant Vanek wants to call Sue to testify about the events of July 9 that preceded the assault on Klein and also about her prior encounters with Klein. We have already discussed the events of July 9. As for the prior encounters, Sue Vanek believed Klein was stalking her. There was a history of encounters that had begun two or three years before the July 1995 incident. Klein had come to Sue's realty office and made inquiries about properties that he may actually have had no interest in buying, and they had encountered each other at a shoe store near her office. Sue claimed that following these encounters, Klein had called her repeatedly and had left notes on her car when she did not respond. In 1994, Klein came to an open house Sue was sponsoring and supposedly threatened her with a poker. This led to a criminal charge and to a guilty plea by Klein to a misdemeanor charge.

Sue Vanek's testimony about the events of July 9 prior to the beating of Klein is relevant and admissible. The testimony is helps to establish the time frame in which the events of July 9 occurred and provides evidence of Edward Vanek's whereabouts on that evening. The testimony is highly probative concerning Vanek's claim that he was not, and could not have been, at the parking lot at the time of the beating, and that he could not have conspired with Krocka and Composto. The only part of Sue Vanek's testimony regarding these events that has the potential for being unfairly prejudicial to Klein is her rendition of seeing Klein outside her office making a threatening gesture. However, it does not appear that Sue Vanek's testimony about what she saw will be seriously disputed; Klein's counsel informed the Court at the pretrial conference that Klein will concede that he was outside the office and shook his fist at Sue. Any potential for unfair prejudice is out-weighed by the fact that the testimony helps to explain why Krocka and Composto picked Klein up in the first place; without this testimony there would be a risk that the jury might erroneously believe that Klein was simply selected at random. We will, however, preclude Sue Vanek from testifying concerning her emotional reaction to seeing Klein; such testimony is not relevant and any marginal probative value that it may have would be far out-weighed by the unfair prejudice to Klein if such testimony were admitted. In addition, Sue's testimony about the events following the beating — in particular, her later encounter with Krocka and Composto at the police station, when they explained to her why they had not arrested Klein — are not relevant and are excluded from evidence.

The history of Klein's prior encounters with Sue Vanek, assuming defendant's characterization is accurate, certainly would be frightening to any reasonable person; assuming Klein again showed up outside her office on July 9 and made a threatening gesture, she had ample reason to call the police, Krocka and Composto had a proper basis to pick him up for questioning, and there was a legal basis for Sue Vanek's later charge against Klein. But the trial in this case does not involve the propriety of Klein's arrest or charge. Rather, the claims relate exclusively to the beating Klein received. It is no defense to this claim that Klein may have, in some sort of vigilante-like way, gotten what he had coming to him. And indeed that is not Vanek's defense in the lawsuit: his contention is that he is not the person who beat Klein.

Vanek does not contend (nor could he) that the "stalking" evidence should be admitted to show Klein's bad character or as somehow mitigating the wrongfulness of the assault. Rather, he argues that Sue's testimony about her prior encounters with Klein is relevant "to explain why [Klein] falsely identified [Edward Vanek] as one of his alleged attackers. [Klein] had stalked Sue Vanek for three years prior to July 9, 1995 and was familiar with Ed Vanek whom [sic] he perceived as an obstacle to the object of his obsession, Sue Vanek." Defendant's Response to Plaintiffs Motion in Limine, p. 3. However, Vanek has offered no support for the proposition that Klein "perceived [defendant] as an obstacle" to Sue Vanek. Based on the proffer made by Vanek's attorney at the pretrial conference, it appears that Klein had encountered Edward Vanek just one time prior to July 9. When Klein was arrested on Sue's complaint in 1994, Edward Vanek came to the police station, approached Klein and told him to stay away from his (then) wife.

Though not characterized as such by Vanek, he is essentially articulating a theory that Klein harbored a bias against him, or against him and Sue, which led Klein to falsely identify Ed Vanek as his assailant. The Court believes that Vanek is entitled to develop this theory to some extent, but not to the extent he wishes. In order to establish a basis for the bias claim, Vanek may elicit from Sue Vanek and from Klein testimony about their encounter on July 9 (within the limits discussed above), as well as the fact that she had accused Klein of stalking her in 1994. Vanek himself may testify about his previous encounter with Klein — when he supposedly told Klein to stay away from his wife — and may also elicit testimony about this from Klein. Beyond this, the Court will exclude testimony about Sue Vanek's prior encounters with Klein. The details of those encounters are not probative of the theory argued by Klein — that he perceived Ed Vanek as an "obstacle" between him and Sue Vanek, thus causing him to falsely identify Vanek as his attacker. And even if these details were somehow probative, their probative value is marginal at best and is far outweighed by the risk of unfair prejudice to Klein: if the details of these encounters were admitted in evidence, it is likely that despite any cautionary instructions the jury would become so inflamed and prejudiced against Klein that they would be unable to fairly determine the issues in this lawsuit.

B. Testimony of Dr. Anthony D'Agostino

Klein has moved to bar the testimony of Dr. Anthony D'Agostino, a psychiatrist. Dr. D'Agostino reviewed records concerning psychiatric treatment of Klein as well as Klein's deposition. He did not personally examine Klein.*fn1 According to Vanek's response to the motion in limine, D'Agostino would testify that Klein suffers from bipolar disorder — otherwise known as manic-depressive disorder — and from a mixed personality disorder with narcissistic and ...

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