The opinion of the court was delivered by: James F. Holderman, Chief Judge
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR NEW TRIAL
On October 16, 2007, a nine-member jury returned a verdict finding that defendant Chicago Police Officer Scott Korhonen violated plaintiff Coprez Coffie's fourth amendment right to be free from unreasonable searches by inserting a screwdriver into Coffie's rectum after an arrest of Coffie on August 28, 2004. The same jury also found that defendant Chicago Police Officer Gerald Lodwich, Korhonen's partner, failed to take reasonable steps to stop Korhonen from engaging in the unreasonable screwdriver search of Coffie's rectum .
While the jury was deliberating, the parties agreed and stipulated that, if the jury found in favor of Coffie on his claim against Korhonen, then Coffie would be entitled to $4,000,000 in compensatory damages plus an award of attorneys' fees of $675,000 . (Trial Tr. vol. 10, 6:12-23.)*fn1 After the jury returned its verdict in favor of Coffie, pursuant to the parties' stipulation, I, as the presiding trial judge, entered judgment on the verdict for the stipulated amount of damages, fees and costs .
I. Korhonen and Lodwich's Post-Trial Motion
In Korhonen and Lodwich's post-trial motion , they have not argued that the evidence was insufficient to support the jury's verdict in favor of Coffie. They also have not argued that I erred in any manner with regard to the instructions to the jury on the law. Consequently, in considering the defendants' post-trial motion, I will review the case in this post-trial opinion from the standpoint that the jury was properly instructed and had sufficient evidence to return the verdict in favor of Coffie, as it did.
Korhonen and Lodwich's five post-trial arguments relate to certain rulings that I made in the case as follows: (1) not removing for implied bias one of the nine jurors, Gladious Carter, who consistently and credibly stated she could be fair; (2) not allowing treating physician, Dr. Scott Yilk, to provide the jury certain cumulative opinion testimony that had not been timely disclosed during discovery; (3) not allowing evidence to be introduced regarding Coffie's prior arrest that had not resulted in a conviction; (4) requiring all trial counsel to minimize prejudice to the plaintiff with the use of the term "illegal drugs" or "controlled substance" instead of the term "heroin" in describing the crime to which Coffie had pleaded guilty following Coffie's arrest and the unreasonable search of Coffie's rectum by Korhonen on August 28, 2004; and (5) granting Coffie's pretrial motion to bifurcate the issues of liability and damages for trial.
Korhonen and Lodwich in their post-trial motion also seek leave to submit evidence of what they now assert to be dishonesty on the part of an unnamed juror during voir dire in the case.
A district court may grant a new trial if the verdict is against the manifest weight of the evidence-which this verdict is not-or if during the trial prejudicial error occurred. Bankcard Am., Inc. v. Universal Bancard Sys., 203 F.3d 477, 480 (7th Cir. 2000); Romero v. Cincinnati, Inc., 171 F.3d 1091, 1096 (7th Cir. 1999). When a motion for a new trial is predicated on a purported error of law, the moving party must show that the error was substantial enough to deny that party a fair trial. Perry v. Larson, 794 F.2d 279, 285 (7th Cir. 1986). None of Korhonen and Lodwich's arguments meet this standard, and none, individually or collectively, warrant a new trial. Korhonen and Lodwich's Motion for New Trial and for Leave to Submit Evidence of Juror Dishonesty During Voir Dire  is denied in its entirety for the reasons set forth below.
Before the trial commenced, the parties stipulated and agreed to three uncontested facts:
1. On August 28, 2004, Plaintiff Coffie was arrested by Defendants Korhonen and Lodwich, after which he was taken to the Cook County Jail that same day.
2. Plaintiff Coffie was released from custody of the Cook County Jail on August 30, 2004.
3. On August 30, 2004, at approximately 7:00 p.m., Plaintiff made a report of an injury to his buttocks area at the emergency room at St. Nazareth Hospital. (Trial Tr. vol. 1-A, 26:21-22.)
The parties' "Agreed Statement of the Case," which was read to the venire during jury selection, presented to the jury the divergent factual positions of the parties. It stated as follows:
On August 28, 2004, the Plaintiff in this case, Coprez Coffie was arrested by the Defendants in this case, Chicago Police Officers Scott Korhonen and Gerald Lodwich, for possession of a controlled substance.
The Plaintiff alleges that during the course of the arrest, the Defendants handcuffed him and drove him to an alley, where they took him out of their car, pulled down his pants, and then inserted a screwdriver into his rectum.
The Defendants contend that they drove plaintiff directly to the police station, and specifically deny that they drove Plaintiff to an alley, deny they took him out of the car, deny that they pulled down his pants, and deny that they inserted a screwdriver into his rectum. (Trial Tr. vol. 1-A, 30:7-22.)
Considering all the evidence, which is now conceded by the defense to be sufficient to support the jury's verdict for the plaintiff, including the circumstantial evidence, which strongly supports the jury's verdict for Coffie, this was a clear case. The evidence established by a preponderance of the evidence each of Coffie's claims that Korhonen unreasonably inserted a screwdriver in Coffie' rectum in violation of Coffie's constitutional rights and that Lodwich knowingly failed to stop Korhonen's unconstitutional conduct. In addition, the evidence clearly showed that Korhonen and Lodwich each knowingly testified falsely at the trial.
I now turn to address the issues raised in Korhonen and Lodwich's post-trial motion.
III. Juror Gladious Carter
During jury selection, after counsel for both sides and the respective parties, including Coprez Coffie, were introduced (Trial Tr. vol. 1-A, 107-108), the court asked the venire:
All right. Folks, do you know any of these people that you've just been introduced to? Any of the lawyers or any of the parties? If you do or you think you might, please raise your hand. (Trial Tr. vol. 1-A, 108:5-8.) Only one prospective juror, who was not selected to be on the jury, raised his hand. Gladious Carter did not raise her hand.
When counsel for each side asked the prospective jurors questions, they each could have asked the prospective jurors further questions about any past contact with any of the parties. Counsel did not so inquire. Mr. Platt, counsel for Korhonen and Lodwich, individually questioned Ms. Carter. Among other questions, such as where in Chicago she lived, Mr. Platt asked:
MR. PLATT: Is there anything about what you know about this case so far that you think would affect your thinking as to whose side you might be on?
PROSPECTIVE JUROR CARTER: No.
MR. PLATT: You would treat all the parties fairly? PROSPECTIVE JUROR CARTER: Right. (Trial Tr. vol. 1-A, 131:8-13.)
After a recess and the sidebar-questioning of another prospective juror who was not selected, Mr. Platt further individually questioned Ms. Carter. (Trial Tr. vol. 1-A, 149-151.) He inquired about her four children. Mr. Platt had the opportunity to question Ms. Carter individually on any other pertinent point that he desired. After counsel for both sides had a full opportunity to question each prospective juror, counsel for each side exercised all three of their respective peremptory challenges and the jury was selected, which included Gladious Carter. (Trial Tr. vol. 1-A, 153.)
I then asked counsel at the sidebar outside the venire's presence: "Anything else we need to take up before we go out and announce the jury?" Mr. Platt responded, "No, Judge." (Trial Tr. vol. 1-A, 155:12-15.) The names of the jury members were then read in open court, completing the jury selection phase. The trial then recessed for lunch.
After lunch, in addition to addressing other items with counsel, outside the jury's presence, I stated as follows:
I have received a memorandum from my executive law clerk, who received information from Linda Rudolph, who is the head of the jury department. I have made copies of that memorandum, as it was handed to me, and provided it to counsel.
It states as follows. It's from my executive law clerk to me. It's regarding the jurors in Coffie v. City of Chicago.
Now, on that point, on the "City of Chicago" point, I have made this case an individual versus two individuals. That's what this trial is. City of Chicago is part of the case but is not part of this trial, but the caption of the case is "Coffie versus City of Chicago."
The memo states as follows: "At 12:20 today, Linda Rudolph came to chambers to report a conversation she had with one of the jurors selected to serve in Coffie v. City of Chicago.
"After being released for the lunch break, Juror Patrice Olson approached Linda in the jury room on the second floor and said that she wanted to speak with Linda in private. Ms. Olson was accompanied by another juror who was also selected to serve in Coffie.
"Once the three of them were alone, Ms. Olson related that at some point after the names of the selected jurors were announced, the African-American woman sitting next to her made the statement, 'I think I know the plaintiff, but I can't say from where.' This statement was not made to anyone in particular.
"Ms. Olson thought someone should know about this comment, so she reported it to Linda."
That's the end of the memo. The reason she would report it to Linda, Linda is, of course, the person that greets the jurors in the morning when they come in, new jurors, as these people are, when they arrive at the jury room at 8:30 in the morning. Linda is the one in charge, so that's why this lady would go to Linda Rudolph.
Any comments, questions, thoughts?
MR. LOEVY: Your Honor, I have spoken to my client, and he's quite sure he's never met this woman in his life.
It's possible they were misheard, and, you know, at the very least, we'd say no action is justified.
THE COURT: All right. Well, the African-American lady who sits next to Patrice Olson or sat next to Patrice Olson during the voir dire is Gladious Carter.
MS. KENDALL: Well, Judge I think out of an abundance of caution, it would be appropriate for her to be further questioned to determine how strong of a belief that she has.
THE COURT: Okay. Why don't we bring Gladious Carter into the courtroom. (Trial Tr. vol. 1-A, 170-171.)
Ms. Carter was brought individually into the courtroom in the presence of the parties and their counsel. The other jurors remained in the jury room, and the following was said:
THE COURT: All right. Please come on in, Ms. Carter. If you could take a seat in the first chair of the jury box. I will let the lawyers step back from the podium and have a seat at their counsel table as well.
Thank you, Ms. Carter. We appreciate your coming in early to the courtroom.
The question came up that you may, after spending the morning here in the courtroom, may have recognized the plaintiff from somewhere else. Is that correct or not?
PROSPECTIVE JUROR CARTER: Yeah, it seemed as though I could remember him from somewhere.
THE COURT: Okay. All right. Well, let me just ask you, remembering him from somewhere, would that cause you to not be able to be a fair and impartial juror in this case?
PROSPECTIVE JUROR CARTER: No.
THE COURT: Okay. So you still think, even though you remember him from somewhere, you still think you could be fair and impartial?
PROSPECTIVE JUROR CARTER: Oh, yeah.
THE COURT: Okay. Let me also ask, do you remember where?
PROSPECTIVE JUROR CARTER: It'd been some -- quite a while. I think he came on during the years with my children, my grandchildren growing up.
THE COURT: Okay. Let me say this. The plaintiff may look like someone, but you're pretty sure it was the plaintiff as opposed to somebody that might have looked like him?
PROSPECTIVE JUROR CARTER: I'm pretty sure it was him.
THE COURT: Okay. I am going to ask you, then, to put out of your mind whatever else you remember from that earlier occasion and consider this case as a juror in the case based upon the evidence presented here.
Do you think you could do that?
PROSPECTIVE JUROR CARTER: Yes.
THE COURT: And you can remain fair and impartial and listen to the evidence, keep an open mind, evaluate the evidence, and return a fair verdict?
PROSPECTIVE JUROR CARTER: Yes.
THE COURT: Okay. All right. Any questions by counsel?
MR. LOEVY: Not from the plaintiff, Your Honor.
THE COURT: Any questions by defense counsel?
MS. KENDALL: Not for the witness, Your Honor.
THE COURT: All right. Thank you.
Thank you very much, Ms. Carter. We will be right back with you shortly, and we will get started with the case, all right? Thank you. (Trial Tr. vol. 1-A, 172-173.)
As the transcript reflects, defense counsel was given the opportunity to question Ms. Carter and develop a basis for a challenge for cause. Defense counsel declined to do so. (Trial Tr. vol. 1-A, 173:21.)
It was apparent that Ms. Carter had some recollection that was jogged as she recalled vaguely having seen Coffie before. Regardless of whether her memory was accurate or not that she had had some prior contact with Coffie, she stated credibly that she could still be fair. She, therefore, remained on the jury, and I told counsel, "If you want to revisit it we can voir dire her later on." (Trial Tr. vol. 1-A, 178:25-179:1.) The trial commenced.
Four days later, on October 5, 2007, at the beginning of the afternoon session of the trial, the following occurred outside the presence of the jury:
THE COURT: Good afternoon.
Are there any matters we need to take up before we bring in the jury?
MS. KENDALL: Judge, we just have one briefly. We just wanted to make the Court aware that I think just before the case started we had some questions of one of the jurors, Gladious Carter.
MS. KENDALL: And we, at I think, sometime -- maybe after the close of the plaintiff's case -- would just like to maybe requestion her to see if whether, now that she has seen the plaintiff and heard his background, whether she knows one way or another whether she knows him.
THE COURT: Okay. (Trial Tr. vol. 5, 82.)
At the end of the court session that day, October 5, 2007, after the jury had been excused for the weekend, I asked my clerk to ask Ms. Carter individually to come into the courtroom, and the following transpired:
(Brief pause. Juror Carter enters.)
THE COURT: Thank you, Ms. Carter. Come on in. We don't want to delay you, but go ahead and have a seat.
As you are going to your seat, as you remember, you had told us early on about - - go ahead and have a seat. You can sit in the first chair. It's probably easier.
You told us early on about your having contact or believing you had contact with Mr. Coffie before. As the trial has worn on, do you have any change in your view?
Let me also ask, have you recalled anything further as to what the contact was?
JUROR CARTER: I believe it was at the Hyatt Regency when he was a security guard.
THE COURT: All right. When he was security at the Hyatt Regency?
THE COURT: Okay. What contact do you - -
JUROR CARTER: I remember faces very good.
THE COURT: Okay. And you think you ran into him at some point at the Hyatt?
Is there anything about that contact that you had with him at the Hyatt that would make you believe that you could not be a fair and impartial juror in this case?
THE COURT: Okay. Could you tell us any more about that contact at the Hyatt that you recall now?
JUROR CARTER: It's been quite awhile.
THE COURT: Do you want some water?
I will get her water. That's ...