The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court are several motions in limine filed by Defendant Richard Jenkins (Docs. 82, 83, 84, 85, 87, 88, 89, 93 & 124). Plaintiffs have filed responses to the motions (Docs. 133, 134, 135, 136, 138, 139, 140, 141, 142). Defendant Jenkins has also filed a motion to bar Michelle Rogers (Doc. 86). Plaintiffs have also filed a response to Defendant's motion to bar (Doc. 137). Defendant Jenkins has filed a reply to his first and ninth motions in limine (Doc. 144 & 145). The Court rules as follows:
A. First Motion in Limine
The Court GRANTS Defendant's First Motion in Limine (Doc. 82).
Specifically, Defendant seeks to preclude Plaintiffs from referencing Defendant's prior assertion of his Fifth Amendment privilege, mentioning his invocation of his Fifth Amendment right, or calling any witness to testify in this regard. Defendant argues that such evidence is irrelevant, not probative, and prejudicial. Plaintiffs argue that Defendant asserted his Fifth Amendment right in bad faith and his invocation of that right is probative for Defendant's credibility. Contrary to Plaintiffs' assertion, Defendant's invocation of his Fifth Amendment right is a constitutional right, not a matter of credibility. Further, the assertion of the Fifth Amendment has low probative value when, as here, the opposing party "had sufficient opportunity to obtain discovery...on all issues relevant to the trial." Harris v. City of Chicago, 266 F.3d 750, 753-54 (7th Cir. 2001). Therefore, the Court GRANTS Defendant's first motion in limine (Doc. 82).
B. Second Motion in Limine
The Court DENIES Defendant Jenkins' Second Motion in Limine (Doc. 83). Defendant seeks to exclude testimony regarding the diagnosis, permanency, and prognosis of Plaintiffs because Plaintiffs have not been treated by any medical professional within the last year. Defendant cites to the Illinois case Soto v. Gayton, 313 Ill.App.3d 137, 728 N.E.2d 1126 (2000) for its proposition that a medical professional is not able to testify regarding the permanency of a plaintiff's injury without a recent medical exam. However, the length of time between a medical exam and a witness' testimony goes to weight and credibility, not to its admissibility.
Thus, the Court DENIES Defendant Jenkins' second motion in limine (Doc. 83).
C. Third Motion in Limine
The Court GRANTS IN PART AND DENIES IN PART Defendant Jenkins' Third Motion in Limine (Doc. 84). Defendant Jenkins' third motion in limine seeks numerous forms of relief. Defendant first asks that the Court preclude any witness from referring to Plaintiffs as "victims" and Defendant as "offender" or "rapist." Plaintiffs argue that precluding the terms victim and rapist or offender, or requiring witnesses to state "alleged" would be grammatically incorrect and would impose the court's opinion upon the jury. The Court agrees.
Defendant also asks the Court not to react to Plaintiffs while they are on the stand by offering them Kleenex or a glass of water because, Defendant argues, it might suggest that the Court believes Plaintiffs are victims. The Court denies this request. The Court will behave in an appropriate manner at trial.
Defendant also argues that evidence that the Detention Center installed cameras after the alleged incident should be excluded under FEDERAL RULE OF EVIDENCE 407 because it is evidence of a subsequent remedial measure and does not fall into any of the exceptions under Rule 407. Plaintiffs argue that evidence of the installation of cameras is necessary for proving an element of its § 1983 claim against St. Clair County as evidence that the County was a final policymaker. Further, Plaintiffs argue that evidence the County installed video cameras is evidence of its ability and opportunity to control Defendant Jenkins as well as being relevant with respect to the feasability of precautionary measures. All of the purposes offered by Plaintiffs are permissible under FEDERAL RULE OF EVIDENCE 407 which allows admission of subsequent remedial measures when offered for another purpose "such as proving ownership, control, or feasability of precautionary measures, if controverted, or impeachment." FED.R.EVID.407. Therefore, the Court denies Defendant's motion in limine as to evidence of the installation of cameras at the Detention Center.
Further, Defendant requests that the Court exclude any mention of any lost wages, employment opportunities, or lost ability to engage in a sexual relationship as plaintiffs are not seeking any of these damages. Plaintiff agrees that it is not seeking these damages and does not object to the exclusion of any reference to those damages. Therefore, the Court grants Defendant's request to exclude references to those damages.
Finally, Defendant seeks to exclude any mention or reference to St. Clair County paying attorney fees of Richard Jenkins. The Plaintiffs do not object to Defendant's request to exclude those references and the ...