the applicable standard under § 1983. I deny the motion.
(6) The officers ask me to bar Ms. Threlkeld from mentioning the
Fraternal Order of Police, Lodge No. 7, disclaimer that appears at the
top of official reports for the Chicago Police Department. Apparently,
the purpose of the disclaimer is to state that a witness is not
testifying voluntarily, but under a direct order of a superior officer.
The officers claim that, but do not explain why, questions about this
disclaimer would confuse the jury and prejudice the defendants. Ms.
Threlkeld responds that the disclaimer is relevant for impeachment
purposes because it advises the witness to tell the truth. Neither party
provides me with the text of the disclaimer. It would be helpful, in
asking me to rule on the admissibility of particular words or phrases, to
provide me with the language. I cannot determine whether the disclaimer
would be admissible for any purpose, so I deny the motion.
(7) The officers ask me to bar Ms. Threlkeld from referring to a "code
of silence" among police officers. Any argument about a generalized
cover-up scheme would be inadmissible if there were no evidence to
support it, see Sanders v. City of Indianapolis, 837 F. Supp. 959, 963
(S.D. Ind. 1992) (Barker, J.) ("In a court of law . . . justice is
dispensed based on evidence of articulated and proven facts, not on
generalized assumptions and prejudices."), but it is premature to
conclude that there will be no evidence to show that the officers in this
case lied for their colleagues or covered anything up. I deny the
(10) The officers also ask me to bar evidence that the battery charge
against Ms. Threlkeld was dropped. Ms. Threlkeld argues that it is
relevant to the question of whether she was actually combative when the
officers arrested her; if she was, why would the charges have been
dropped? Charges may be dropped for a number of reasons independent of
their merits; e.g. the death of the only eyewitness. Innocence is not a
necessary inference from dismissal of charges. See Logan v. Caterpillar,
Inc., 246 F.3d 912, 926 (7th Cir. 2001) (In malicious prosecution
context, "[t]he bare use of a nolle prosequi order does not establish
that the criminal proceedings were terminated in a manner indicative of
the plaintiff's innocence.").
In any event, the question of whether Ms. Threlkeld was combative goes
to her claim that she was not resisting arrest and therefore that force
was unnecessary. However, eventual dismissal of charges against her is
not relevant to the reasonableness of the officers' actions at the time
of her arrest. For that matter, it is not clear that the existence of
battery charges against her is relevant at all; what is relevant are her
actions and the officers' responses at the time of her arrest. Ms.
Threlkeld asserts that the dismissal of charges against her is also
relevant to the excessiveness of the force used by the officers, but she
neither explains the point nor offers any authority, so it is waived for
the purposes of this motion. See United States v. Papia, 910 F.2d 1357,
1363 (7th Cir. 1990) (litigant must present an argument accompanied by
relevant authority). I grant the motion.
(16) Ms. Threlkeld has no objection to the officers' request that I bar
reference to evidence about the misconduct of non-parties, provided that
the officers do not open the door by pointing the finger at non-parties.
I grant the motion subject to this condition.
(17) Finally, the officers ask me to bar any evidence "regarding
allegations of mistreatment of nonparties." The sum of their argument is
that any such evidence (which they do not identify) would be irrelevant
and prejudicial, but they do not explain
why or cite to any authority.
Ms. Threlkeld argues that evidence of the officers' treatment of Ms.
Threlkeld's daughter at the scene of her arrest is relevant to the
officers' state of mind, which is a permissible purpose to admit
so-called "other acts" evidence under Fed.R.Evid. 404(b). United States
v. Robinson, 161 F.3d 463, 469 (7th Cir. 1998) The motion is denied.
III. Defendant White Castle
Defendant White Castle's motions in limine numbers 2, 3, 4, 5,
and 6 are granted as unopposed. No motion numbered 12 was filed.
White Castle's motion in limine number 14 (joining in the officers'
motions numbers 1, 7, 10, 15 and 17) is granted in part and denied
in part as discussed above in section II.
(1) White Castle moves to bar any evidence, "without proper medical
foundation," that Ms. Threlkeld sustained any medical injuries, and, if
any, their cause and permanence. White Castle does not explain why this
evidence should be inadmissible or advert to a rule of evidence, so the
motion is denied as unsupported. See Indurante v. Local 705, Int'l Bhd.
of Teamsters, 160 F.3d 364, 366 (7th Cir. 1998) ("[p]erfunctory and
undeveloped assertion" waived).
(7) Again, without citing any authority, White Castle argues that Ms.
Threlkeld should be barred from making any reference or innuendo that
suggests that the defendants have not come forward with any evidence to
refute her evidence of injury because, they argue, it would impermissibly
shift the burden of proof to the defendants. I will instruct the jury on
Ms. Threlkeld's burden of proof. If she has evidence of injury, it does
not shift the burden to the defendants to allow her to point to an
absence of contrary evidence. I deny the motion.
(8) Relying on Illinois Pattern Jury Instructions — Civil ("IPI")
No. 5.01, White Castle asks me to bar reference or innuendo that it has
not called a witness that is not under its control, and that was equally
available to Ms. Threlkeld, to refute any of Ms. Threlkeld's
allegations. As far as I understand the objection, White Castle is asking
me not to give IPI No. 5.01, which permits an inference of unfavorable
testimony from a party's failure to call a witness under its control.
However, White Castle is asking for a ruling as to witnesses not under
its control, and therefore outside of the scope of IPI No. 5.01, so the
instruction would not be appropriate in any event. However, because the
nature of the objection is not clear and White Castle has not identified
the particular witnesses to which it refers, I deny the motion.
(9) White Castle asks me to bar reference to the amounts of any medical
bills unless there is evidence (in the form of a "paid" stamp or
"competent medical testimony") that the bill has been paid. Ms. Threlkeld
objects that there are other ways to lay the foundation for the bills.
Under Illinois law, however, "in order to recover for medical and
surgical expenses, it is necessary that two things be proved: first, that
the claimant has paid or become liable to pay a specific amount, and
second, that the charges made were reasonable charge; for services of
that nature." Barreto v. City of Waukegan, 478 N.E.2d 581, 589 (Ill.
App. Ct. 1985). Payment of a bill is prima facie evidence of the
reasonableness of the expense. Id. However, White Castle provides no
authority for the proposition that a "paid" stamp or "competent medical
testimony" is necessary to establish payment or liability. I deny the
(10) White Castle asks me to bar testimony from Dr. Kerman relating to
Ms. Threlkeld's prognosis "where the examination of the plaintiff took
place several years before trial." It cites Thurmond
601 N.E.2d 1048 (Ill.App. Ct. 1992), which noted that prognosis
testimony must be based on a recent examination. Id. at 1055. Ms.
Threlkeld argues that this is a question of weight rather than
admissibility. Nevertheless, admission of opinion testimony in federal
court is governed by the Federal Rules of Evidence, not by state rules.
See Stutzman v. CRST, Inc., 997 F.2d 291, 295 (7th Cir. 1993. White
Castle has not provided any basis for excluding Dr. Kerman's prognosis
opinion under the Federal Rules, nor am I aware of any federal authority
for the cited proposition, so I deny the motion.
(11) White Castle moves to bar evidence of other incidents in which
Andre Tillman has arrested or handcuffed people, arguing that they are
not relevant. Ms. Threlkeld responds that any prior incidents are
relevant to White Castle's knowledge of "Andre Tillman's propensity
toward violence," which, she argues, would give rise to a duty on the
part of White Castle to protect her.
The real issue, not explicitly raised by either party, is whether
evidence of the other incidents would be admissible under Fed.R.Evid.
404(b), which disallows such evidence to demonstrate propensity, but
allows it to show knowledge, among other things. Ms. Threlkeld does not
bring a negligent hiring claim; her theory against White Castle in Count
I of her complaint is agency, or respondeat superior. She has not
demonstrated why White Castle's knowledge would be relevant to this
theory. Moreover, she admits that she wants to use the evidence to show
Andre Tillman's propensity toward violence. This purpose is explicitly
prohibited by Rule 404(b), so I grant the motion.
(13) White Castle asks me to bar reference to any other law suits
involving it or its security guards on the grounds of relevance. Ms.
Threlkeld argues that the other lawsuits are relevant to the extent that
they might show that White Castle has taken inconsistent positions on the
issue of whether its security guards are agents. However, even if they
do, any estoppel argument would be resolved by me as a matter of law, not
by the jury. Ms. Threlkeld responds additionally that any lawsuits
involving Mr. Tillman or the White Castle restaurant in this case would
be relevant, but she does not explain why. Conclusory statements are
insufficient, see Indurante, 160 F.3d at 366, so I grant the motion.
The plaintiff filed seven motions in limine and no defendant filed any
response, so all of the plaintiff's motions are GRANTED as unopposed.
Jackson Park's motions numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, and 11 are
GRANTED as unopposed; number 12 is GRANTED IN PART and DENIED IN PART;
numbers 10 and 13 are DENIED. The officers' motions numbers 1, 3, 4, 8,
9, 14 and 15 are GRANTED as unopposed; numbers 2, 10 and 16 are GRANTED;
numbers 5, 6, 7 and 17 are DENIED. White Castle's motions numbers 2, 3,
4, 5 and 6 are GRANTED as unopposed; number 14 is GRANTED in part and
DENIED in part; numbers 11 and 13 are GRANTED; numbers 1, 7, 8, 9 and 10