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Rosario v. City of Chicago

April 1, 2008


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


After the January 4, 2008 pretrial conference that resulted in this Court's approval of the final pretrial order ("FPTO") jointly submitted by counsel for the parties,*fn1 each side has submitted motions in limine on the schedule set during that conference: Dkt. 52 on behalf of plaintiff Isaac Rosario ("Rosario") and Dkt. 50 on behalf of defendant James Witt ("Witt"). With each side having responded to the other's motion--via Dkt. 54 by Witt and Dkt. 53 by Rosario--the motions are ripe for decision.

What has emerged in large part from the respective submissions is that Witt is attempting to muddy Rosario up as much as possible, too often with matters that are extraneous to Rosario's claim of excessive force (as for example by attempting to inject evidence that would be relevant only if Rosario were claiming the federal constitutional equivalent of false arrest, as he is not), while for his part Rosario seeks to narrow the lawsuit's focus too much. This Court does not subscribe to either approach, and this memorandum opinion and order deals with both sides' motions.

Rosario's Motion

Rosario, who as already stated claims to have been the victim of a police beating, seeks to bar what he terms "irrelevant and prejudicial evidence." That label attacks a multitude of asserted sins, which will be dealt with seriatim.

Evidence of Alcohol on Rosario's Breath

Emergency room physician Dr. Richard Schmitt of West Suburban Hospital, where Rosario was taken after the encounter about which he complains, included in his emergency room chart "ETOH on breath." Witt raises the red herring that, as a treating physician, Dr. Schmitt need not have prepared a report under Fed. R. Civ. P. 26(a)(2)(B). True enough, although if Dr. Schmitt were to be asked to provide an opinion under Fed. R. Evid. ("Rule") 702 the relevant disclosure requirements would be those set out in Fed. R. Civ. P. 26(a)(2)(A) and (C). But here Dr. Schmitt would be presented as an occurrence witness rather than an opinion witness, so that the issue of admissibility or inadmissibility has to be decided on different grounds.

In that respect the cases consistently recognize (indeed, Witt's responsive memorandum acknowledges) that there must be some showing of impaired perception before the potentially prejudicial evidence of alcohol consumption can get into the case (see, e.g., Jarrett v. United States, 822 F.2d 1438, 1446 (7th Cir. 1987)). And on that score Witt's own Mem. 3 acknowledges that Dr. Schmitt's examination confirmed that Rosario was "alert and oriented"--indeed, the doctor entered on Rosario's chart that he was "alert and oriented times three." Witt himself made no notation as to alcohol on Rosario's breath, no alcohol-related charges were brought against Rosario, and no alcohol testing was undertaken that night.

Nonetheless, in typical fashion, Witt's counsel attempt to conjure up a set of suppositions and wholly speculative--"what if?"--arguments to inject Dr. Schmitt's notation into the case. That is precisely the kind of thing that the rules as to relevance and probative value, and ultimately the balancing requirement of Rule 403, are designed to reject. Rosario's motion for exclusion is granted.

Rosario's Other Arrests and Convictions*fn2

Rosario has an acknowledged record of prior convictions. When he testifies, felony convictions less than 10 years old will be fair game for his impeachment under Rule 609(a)(1) and (b).*fn3

But Rosario has made no false arrest claim--he does not challenge the existence of probable cause for his arrest, but rather bases his claim solely on the asserted physical violence that he suffered. Again Witt's counsel essay to shoehorn in irrelevant evidence--or even if there were marginal relevance and probative value, evidence that would be excluded under the balancing standards of Rule 403.

Nor will this Court entertain any end runs around that constraint. Instead it rules that Rule 403 can best be served by the parties' entry into a stipulated statement covering the convictions and sentences, so that the stipulation can be the subject of either or both sides' submissions during Rosario's direct or cross-examination testimony.

Miscellaneous "Hearsay" Documents

Because the parties' submissions make it abundantly clear that passing on Rosario's objections tendered under this rubric cannot be evaluated without an examination of the exhibits themselves, and because this Court has not been furnished with the challenged exhibits, no piece-by-piece ruling can be made in this opinion. But given the focus of Rosario's claim on assertedly excessive force, the principles enunciated in such cases as Palmquist v. Selvik, 111 F.3d 1332 (7th Cir. 1997) would govern ...

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