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United States District Court, N.D. Illinois, Eastern Division

May 2, 2005.

MICHAEL F. SHEAHAN, et al., Defendants.

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


Trial of this action was regrettably aborted on April 11, 2005 when defense counsel raised several issues that should have been tendered earlier but were not. With the trial now having been rescheduled to commence on May 31, codefendants Donald Keith ("Keith"), Cook County and Sheriff Michael Sheahan (for convenience, the latter two defendants will be referred to collectively as "Sheahan," treated as a singular noun) have submitted written materials relating to such motions, and counsel for plaintiff Virgean Houskins ("Houskins") has responded. This memorandum order addresses those issues.

First, Keith again urges that the trial of Houskins' claims against him be severed, converting a single trial into two trials even though all claims against the three defendants derive from the identical set of facts. That motion is empty of merit, and it is denied.

  To begin with, the Final Pretrial Order ("FPTO"), submitted by all parties including Keith*fn1 and entered by this Court on October 4, 2004, listed no objections on Keith's behalf as to any of the exhibits, including those that Keith's counsel now says could prejudice him as and when admitted into evidence in connection with Houskins' claims against Sheahan. This District Court's Standing Order Establishing Pretrial Procedure prescribes the FPTO form that the parties employed, a form that contains this express provision as to exhibits:

As the attached Schedule (c) form indicates, non-objected-to exhibits are received in evidence by operation of this Order, without any need for further foundation testimony.
And the exhibits now complained of by Keith's counsel were listed in the FPTO as joint exhibits and were set forth with this legend:

  The parties have agreed to the admissibility of the following documents:*fn2 In sum, Keith and his counsel have forfeited (if not indeed waived) any objections that they now seek to raise.

  Moreover, from a substantive point of view, any exhibits that may be relevant to Houskins' claims against Sheahan but not to her claims against Keith can and will be made the subject of limiting instructions to the jury. Such limiting instructions are regularly provided to juries, and juries in this District Court regularly display the ability to honor and heed such instructions. In short, Keith's renewed motion for severance is again denied.

  As for Sheahan's currently advanced motion in limine, it challenges what the FPTO listed as Houskins' Ex. Pl, described as "Affidavit of Christopher Langone (exhibit summary)." In contrast to the Keith-raised issue just discussed, Sheahan did preserve this objection to that exhibit in the FPTO:

Objection, relevance — may waive subject to Defendant Cook County Sheriff's Department review.
  In that respect it appears that the parties are like ships that pass in the night. Because Sheahan's counsel objected to the affidavit by Langone (Houskins' counsel) that Langone had characterized as a Fed.R. Evid. 1006 summary of an underlying database regarding disciplinary hearings within Sheahan's department, Houskins' counsel has agreed to withdraw the affidavit and to use only the discipline database itself. Nonetheless Sheahan's motion in limine submitted last week continues to object to the introduction of the Langone affidavit (which, as just stated, is no longer in issue).

  Accordingly Sheahan's motion in limine, as framed, is denied as moot.*fn3 And lest Sheahan's counsel retreat to an objection regarding the use of the database itself, Houskins' counsel has provided an explanation that the database was Sheahan's own work product. In short, if and to the extent that Sheahan's motion in limine were to be modified to address Houskins' proposed use of the database itself, it too would call for denial.

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