The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
This action is approaching its third anniversary with a joint effort to bring the case to trial. But the jointly-generated final pretrial order ("FPTO"), and now an Amended FPTO, have been accompanied by a host of motions in limine ("Motions") that have been narrowed as a result of this Court's efforts but continue to require rulings as to those remaining. This memorandum order will address the outstanding Motions.
After this Court had commented critically on a number of defense counsel's responses to the Motions by plaintiff Cherise Morris ("Morris") or "Plaintiff"), defense counsel accompanied their Reply regarding defendants' own Motions with a letter that stipulated to P. Motion 1, which is therefore granted without opposition. That grant without opposition also extends to P. Motions 2, 3, 6 to 8, 14 and 15, to all of which defendants had interposed no opposition. This memorandum order turns, then, to the remaining P. Motions.
As to P. Motion 4, Plaintiff's Reply at 4 accurately points out the after-the-fact fabrication represented by Sgt. Gordon's sudden purported flood of recollection. Nor is that a mere matter of credibility to be resolved by the jury. Instead it constitutes highly prejudicial speculation that clearly calls for application of Fed. R. Evid. ("Evid. Rule") 403. P. Motion 4 is granted.
In like fashion, P. Motion 5 deals with a situation in which Sgt. Gordon's earlier total failure of recollection of any encounter with Morris is somehow replaced by a sudden assertion that the imposition of force that he didn't recall at all was purportedly justified. P. Motion 5 is granted as well.
As for P. Motion 9, Morris' limited claim of intangible harms knocks out the admissibility of her psychiatric record. Motion 9 is granted as well.
Motion 10 is likewise granted because Morris has dropped any wage loss claim. In addition, Plaintiff's Reply at 10-11 identifies what appears to be an egregiously false claim advanced by defendants.*fn1
P. Motion 11 turns out to involve no controversy, for Plaintiff's Reply at 11-12 confirms that Morris' counsel is concerned only about keeping prospective witnesses (other than the individual parties themselves) from being in the courtroom to hear other witness' testimony. With that understanding, the City of Harvey can of course opt not to designate a representative to attend the court proceedings at its counsel's table during the course of the trial.
As for P. Motion 12, it appears that defendants seek to elevate what their counsel describes as a "suspicion" to probable cause--terms of totally different content. P. Motion 12 is also granted.
As for P. Motion 13, defendants follow a disclaimer with their already-referred-to effort to introduce Morris' psychiatric records. That back-door effort is rejected, and P. Motion 13 is granted as well.
Finally, Morris' counsel recognizes that P. Motion 16 should be modified by deleting any reference to indemnification for potential punitive damages on the part of the City of Harvey. With that modification, this Court assumes that the parties can reach agreement as to the narrowed stipulation.
At the March 15, 2010 status hearing, defense counsel confirmed which of their Motions had survived the winnowing-down process that had been triggered by this Court's oral directives and by the parties' ensuing conferences. Those comprised D. Motions 7, 8, 10, ...