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Smith v. Cook County

April 8, 2009

CARL SMITH, DECEASED, BY AND THROUGH LAVERN SMITH, HIS NEXT BEST FRIEND AND ADMINISTRATOR OF THE ESTATE OF CARL SMITH, PLAINTIFF,
v.
COOK COUNTY D/B/A CERMAK HEALTH SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Plaintiff's motion for reconsideration and Plaintiff's motions in limine. This matter is also before the court on Defendants' motions in limine. For the reasons stated below, we deny Plaintiff's motion for reconsideration. We also grant in part and deny in part Plaintiff's motions in limine and we grant in part and deny in part Defendants' motions in limine.

BACKGROUND

This is an action was brought by the estate of Carl Smith ("Smith") who was allegedly a detainee in the custody of the Cook County Department of Corrections. Smith had allegedly received a liver transplant in January 2004, which was approximately seven months prior to the date that Smith was allegedly arrested, charged with attempted residential burglary, and eventually taken to the Cook County Jail. According to the complaint, at the time that Smith was taken into custody, he had been on a regiment of anti-rejection medications relating to his prior liver transplant. The allegations in the complaint state that, although medical staff at the Cook County Jail recognized that his prescriptions were necessary, Smith only received his medications sporadically and missed several doses in the week following his detention. On August 10, 2004, Smith allegedly passed out after experiencing severe abdominal pain and was taken to the hospital where he was later informed he was suffering from a reactivation of Hepatitis C, which was the underlying condition that necessitated his liver transplant. Smith was also allegedly informed that his condition was terminal. Five months later, in January 2005, Smith died.

Smith's wife, Laverne Smith, who is the administrator of Smith's estate, brought the instant action and includes in the second amended complaint, a claim alleging violations of Smith's constitutional rights brought under 42 U.S.C. § 1983 ("Section 1983") against Defendant Michael F. Sheahan in his official capacity as Sheriff of Cook County (Count I), a Section 1983 claim brought against Defendant Cermak Health Services (Count II), a Section 1983 claim brought against Defendant Barbara Davis, Defendant Andrew Ting ("Ting"), Defendant Mohamed Mansour, Defendant Tiffany Delane, Defendant Kathleen Watson, and Defendant Rose McBride (collectively referred to as "Individual Defendants") (Count III), an intentional infliction of emotional distress claim brought under Illinois law against all Defendants (Count IV), a wrongful death claim brought under Illinois law against all Defendants (Count V), and a survival claim brought under Illinois law against all Defendants (Count VI). All Defendants moved for summary judgment and moved to strike two letters that had been written by Smith before he died. Plaintiff also moved for summary judgment. The prior judge assigned to this case denied Plaintiff's motion for summary judgment, granted Defendants' motion for summary judgment only with respect to the claims against Ting, denied the remainder of Defendants' motion for summary judgment, and granted Defendants' motion to strike. Plaintiff brought a motion to reconsider the prior judge's ruling on the motion to strike and all parties filed motions in limine. The instant action was reassigned to the undersigned judge on March 9, 2009, and we scheduled a jury trial to start on April 20, 2009.

DISCUSSION

I. Plaintiff's Motion For Reconsideration

Plaintiff moves for reconsideration of the prior judge's order granting Defendants' motion to strike two handwritten letters as inadmissible. The letters at issue were written by Smith in September and November 2004, which was subsequent to the date that Smith was diagnosed with a terminal reactivation of his Hepatitis C, but several months prior to the date of Smith's actual death. At the summary judgment stage, Defendants moved to strike the two letters arguing that they were inadmissible hearsay. Plaintiff argued, in opposition to the motion to strike, that the letters fall under the dying declaration exception to the hearsay rule enumerated in Federal Rule of Evidence 804(b)(2) ("Rule 804(b)(2)"). Rule 804(b)(2) provides that "a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death" is "not excluded by the hearsay rule." Fed. R. Evid. 804(b)(2). The prior judge in this case agreed with Defendants and found that the letters were inadmissible hearsay that did not fall under the dying declaration exception. In doing so, the prior judgerejected Plaintiff's contention that the requirement in Rule 804(b)(2) that the declarant believe his death was imminent should be construed broadly to include the instant situation where the declarant was subjectively aware of the certainty of his death. The prior judge observed that doing away with the "imminent" requirement in Rule 804(b)(2) "rewrites the rule," which is something that courts "cannot do." Smith v. Sheahan, 2008 WL 4276221, at *10 (N.D. Ill. 2008). Based on the fact that Plaintiff had not shown that the letters were written on belief of imminent death, the prior judge granted the motion to strike.

Plaintiff now argues that the prior judge erred in granting the motion to strike since Smith wrote the letters after he received the news of his prognosis that he had "days or weeks to live." (Mot. Recon. 12). Plaintiff argues that, based on the record, there was a sufficient belief of imminent death to qualify the letters under the dying declaration exception. A party is entitled to bring a motion to reconsider "'to correct manifest errors of law or fact or to present newly discovered evidence.'" Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 (7th Cir. 1996)(quoting Keene Corp. v. Int'l Fidelity Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1982)). In addition, under the "law of the case doctrine," there is a "presumption against reopening matters already decided," which the Seventh Circuit has found to "hold[] when a case is reassigned from one judge to another." Minch v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007). As the Seventh Circuit has stated, "[i]n situations where a different member of the same court re-examines a prior ruling, 'the law of the case doctrine . . . reflects the rightful expectation of litigants that a change of judges midway through a case will not mean going back to square one.'" Id. (quoting in part Mendenhall v. Mueller Streamline Co., 419 F.3d 686, 691 (7th Cir. 2005)).

As an initial matter, this issue was fully briefed before the previous judge and most of the arguments now raised by Plaintiff were also raised when the issue was first addressed. Plaintiff now contends that the prior judge did not have the benefit of certain evidence including medical records relating to Smith's prognosis at the time that Smith authored the letters in question as well as an affidavit from Smith's wife regarding Smith's condition and mind-set at the time of the two letters. The medical records provided by Plaintiff in support of the motion for reconsideration note that Smith was informed of several facts about his medical condition including the fact that his liver was "failing" and that his "prognosis was poor." (Mot. Recon.

Ex. 1). The records also reflect that Smith was "distraught" over his poor condition and that he and his wife were aware of the fact that he only had "days to weeks" left to live. (Mot. Recon. Ex. 3). The affidavit submitted by Smith's wife also confirms that Smith was aware of the fact that his condition was "terminal" and that he "knew he was dying." (Mot. Recon. Ex. 5).

Even in light of the medical records and the affidavit of Smith's wife, Plaintiff has failed to point to a manifest error of law in the prior judge's ruling and has failed to show that Smith penned the letters under the subjective belief that his death was imminent. In granting Defendants' motion to strike, the prior judge correctly noted that "'[f]ear or even belief that illness will end in death will not avail itself to make a dying declaration'" and that "'[t]he patient must have spoken with the consciousness of a swift and certain doom.'" Smith, 2008 WL 4276221, at *9 (quoting Shephard v. United States, 290 U.S. 96, 99-100 (1933)). The evidence presented by Plaintiff does not suggest that, in writing the letters, Smith was acting on a belief of imminent death. Rather the medical records and the affidavit of Smith's wife demonstrate that Smith was coming to terms with the fact that he was suffering from a terminal illness. While the records suggests that Smith was aware of the certainty of his death, as the prior judge found, there is nothing to suggest that Smith was aware his death was imminent.

Furthermore, we find that Plaintiff's reliance on Webb v. Lane, 922 F.2d 390 (7th Cir. 1991), is misplaced. While the Seventh Circuit in Webb allowed for the inference of a declarant's belief in impending death from the seriousness of the declarant's injuries, the Court did not abrogate the temporal requirement that such a belief must be a belief that death is "imminent." Id. at 395-96 (emphasis added). In Webb, it was the gravity of the declarant's injuries caused by six gunshot wounds to the chest and abdomen of the declarant and the fact that the declarant was attached to life support that allowed the Court to infer that the declarant was speaking under a belief of imminent death. Id. at 396. Such facts do not exist in the instant action where the Smith wrote the two letters over a month apart and appeared at court hearings in between the writing of the letters.

In this case, Plaintiff seeks to extend the Seventh's Circuit's holding in Webb to an extent that would render the imminency requirement in Rule 804(b)(2) to be meaningless. Plaintiff has not shown a manifest error of law under the standard for a motion to reconsider and has not shown any grounds for disturbing the prior judge's ruling consistent with the law of the case doctrine. We do note that the instant motion was filed by Plaintiff and responded to by Defendants prior to the reassignment of the instant action. However, even if the presumption against revisiting decisions of a prior judge that is embodied in the law of the case doctrine was not in ...


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