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Richman v. Burgeson

June 24, 2008

MARCELLA RICHMAN, PLAINTIFF,
v.
BRIAN BURGESON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Joan B. Gottschall United States District Judge

Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Plaintiff Marcella Richman (the "plaintiff" or "Ms. Richman"), as administrator of the estate of her deceased son, Jack Richman, has brought suit against Michael Sheahan in his official capacity as Cook County Sheriff and against eighteen sheriff's deputies in their individual capacities. Ms. Richman alleges that the defendants are liable for causing her son's death while attempting to restrain him during a proceeding in Illinois state court. This case has been to the Seventh Circuit twice. The most recent appeal was decided on January 7, 2008. The case is now set for trial and the defendants have filed fourteen pre-trial motions in limine. For the following reasons, motions in limine nos. 6, 7, 11 and 13 are granted, motions nos. 2, 5, 8, 9, and 10 are denied, motions nos. 3, 4 and 14 are granted in part and denied in part, and motions nos. 1 and 12 remain under advisement.*fn1

ANALYSIS

As an initial matter, the court notes that the defendants frequently present arguments as to the admissibility of evidence only under the Fourth Amendment. Unfortunately, as the plaintiff points out, this renders their arguments incomplete. Pursuant to the Seventh Circuit's most recent order, the plaintiff may present evidence in support of both Fourth Amendment and Eighth Amendment claims and it is up to the jury to determine which constitutional provision applies. See 512 F.3d 876, 882-83 (7th Cir. 2008) ("[W]hen, as in this case, it is uncertain whether the act complained of is punishment, deciding which remedy is available must wait upon the determination of the facts."). Thus, the court has considered the merits of defendants' motions as they relate to claims under both the Fourth Amendment and the Eighth Amendment.

A. Motion In Limine No. 1 To Exclude Testimony of Charles Mader [158]

The defendants seek to bar any opinion testimony from Charles J. Mader regarding the use of force by the defendants, and specifically from referencing the Cook County Sheriff Department's general orders, training materials, policies, procedures, and use of force paradigm. They argue that such testimony is irrelevant to a Fourth Amendment claim, does not satisfy the requirements of Rule 702 and Daubert,*fn2 and its probative value is outweighed by the danger of unfair prejudice. See Fed. R. Evid. 401; id. 403; id. 702; Thompson v. City of Chicago, 472 F.3d 444 (7th Cir. 2006) (upholding the district court's grant of a motion in limine, in a Fourth Amendment case, barring presentation of evidence concerning police general orders because they were irrelevant to the jury's determination of the reasonableness of the officer's actions).

The plaintiff retorts that the defendants' own experts rely on the very same material that the defendants are seeking to bar the plaintiff from offering and that Judge Cole has already determined its admissibility. See Richman v. Sheahan, 415 F. Supp. 2d 929, 935 (N.D. Ill. 2006) (observing that expert Bowman reviewed Police Training Institute materials); id. (noting that expert Johnson reviewed "various law enforcement training materials and guidelines"); id. at 937 (stating that expert Marsh reviewed "several Cook County Sheriff's Department training bulletins and general orders"). Ms. Richman also argues that the material is relevant to her Eighth Amendment claims. In reply, the defendants assert that Judge Cole's opinion is distinguishable because it was decided before Thompson and concerned different expert testimony. The defendants do not reply to the plaintiff's Eighth Amendment argument or explain why Thompson does not equally apply to their own experts' testimony on policies and training materials.

The court is unable to decide the motion absent information on what evidence the defendants plan to offer concerning general orders, policies, or training procedures. Also, although the court sees little reason to be concerned with the qualifications of Mr. Mader or the reliability of the methods underpinning his opinions, it is concerned that the plaintiff fails to address the defendants' Daubert challenge in any meaningful way. Finally, the court requires additional argument on how such expert testimony will assist or hinder the jury in its determination of whether the defendants acted to punish, which is a key factual question identified by the Seventh Circuit in this case and which was not at issue in Thompson. See Richman, 512 F.3d at 883. Therefore, the motion remains under advisement pending additional argument.

B. Motion In Limine No. 2 To Bar Certain Testimony of Irene Libman [159]

The defendants seek to bar Irene Libman from testifying that defendant Kelly Jackson said, in regard to Jack Richman, "look at him, he peed in his pants."*fn3 They argue that this statement is irrelevant to a Fourth Amendment claim and is unduly prejudicial. See Fed. R. Evid. 401; id. 403; Lester v. City of Chicago, 830 F.2d 706, 712 (7th Cir. 1987) (noting that the Fourth Amendment standard "calls for objective analysis without regard to the officer's underlying intent or motivation"). However, such a statement is relevant to an Eighth Amendment claim because it tends to show defendant Jackson's state of mind. See Richman, 512 F.3d at 881 (observing that proof of state of mind is necessary where "the classification of an act as punishment is ambiguous"). Because the evidence is relevant for this purpose, the court does not reach the plaintiff's argument regarding its relevance to show failure to intervene. The motion is denied.

C. Motion In Limine No. 3 To Exclude Testimony Regarding Hedonic Damages And Any Loss Of Society or Companionship To Marcella Richman [160]

The defendants move to exclude the opinion testimony of Dr. Stan V. Smith ("Dr. Smith") on hedonic damages*fn4 and on economic loss to Ms. Richman as a result of Jack Richman's death. They argue that Dr. Smith's opinions, which are based on a "willingness to pay" methodology, fail to satisfy the requirements of Rule 702, Daubert, and Rule 403. They also contend that any testimony on Ms. Richman's losses is inappropriate given that her claims for loss of society and companionship have been dismissed.

A review of Dr. Smith's opinion reveals that he provides opinions on three types of damages: (1) the loss of replacement household and family services; (2) the loss of the value of life; and (3) the loss of society or relationship sustained by Jack Richman's surviving family. Smith Report at 1 (Apr. 11, 2005). Since Dr. Smith prepared the report, several claims ...


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