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Kurt Kopek v. City of Aurora

May 3, 2012


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


After the parties' submission, followed by this Court's issuance, of the jointly proposed Final Pretrial Order, each side has tendered a set of motions in limine. That has in turn been followed by responses that have made the motions ripe for decision. This memorandum opinion and order will deal first with defendants' motions, then with those advanced on plaintiff's behalf.

Defendants' Motions in Limine

Defendants' Motion 1 (Dkt. 66) seeks to bar "any evidence which might support the claim that January Kopek was not arrested with probable cause or that her arrest was in any way wrongful." But the motion is more sweeping, because it seeks to bar evidence that information provided by the Secretary of State, on the strength of which defendant Officer Edgar Gallardo ("Gallardo") arrested plaintiff Kurt Kopek's wife January Kopek, was incorrect.

But the undisputed fact that January Kopek is not a plaintiff and is not bringing a false arrest claim is not a basis for asserting that the Secretary of State's misinformation is not relevant to the claims advanced by Kurt Kopek. Any possible confusion on that matter can readily be dispelled by an appropriate explanatory jury instruction. Hence defendants' Motion 1 is denied.

Defendants' Motion 2 (Dkt. 67) seeks to preclude "any evidence as to January Kopek's feelings, pain and suffering, or injuries she claims to have felt or suffered during the course of the incident at issue in this lawsuit." Although January Kopek's internalized reactions are inadmissible (she is not a co-plaintiff, and this Court perceives no other basis for introduction of such testimony), plaintiff's response appears correct in arguing that her "reactions" in the form of her conduct and statements at the time may well be relevant. Accordingly defendants' Motion 2 is granted to the limited extent described here, but it is denied in the broader sense advanced by defendants, with more particularized rulings to be made at the time of trial.

Defendants' Motion 3 (Dkt. 68) seeks to bar evidence that Officer Gallardo's use of a taser was contrary to applicable General Orders of the Aurora Police Department, while at the same time defense counsel wants to permit testimony by the officer that would support his use of the device. Plaintiff's response accurately portrays that position as pretty much the equivalent of driving the wrong way on a one-way street (see Whren v. United States, 517 U.S. 806, 815 (1996) and Thompson v. City of Chicago, 472 F.3d 444, 455 (7th Cir. 2006), both cited by plaintiff). Testimony going in either direction is inappropriate, because such General Orders are not relevant to the objective reasonableness or unreasonableness of the officer's conduct under the Fourth Amendment. Defendants' Motion 3 is thus granted in part and denied in part.

Defendants' Motion 4 (Dkt. 69) asks to bar the testimony of Dr. Nadia Khan, to which the plaintiff responds with a sort of "sauce for the goose is sauce for the gander" argument, pointing to plaintiff's Motion 5 that wishes to bar defendants from calling two Aurora Fire Department paramedics who assertedly had not been disclosed as witnesses in violation of Fed. R. Civ. P. 26(a). In that respect plaintiff's response at 1 accurately "recognizes that both sides make nearly identical legal arguments compelling these witnesses' exclusion at trial." Both defendants' Motion 4 and plaintiff's Motion 5 are granted.

Finally, defendants' Motion 5 (Dkt. 70) asks to bar the admission of plaintiff's Ex. 24,*fn1 a bill from Copley Memorial Hospital, because those emergency room expenses were not billed to plaintiff. But that position is a totally mistaken application of the collateral source doctrine, as demonstrated by the very decision cited by defendants. That decision, Wills v. Foster, 229 Ill.2d 393, 413, 892 N.E.2d 1018, 1030 (2003), expressly aligns Illinois with the "reasonable value approach" adopted by the Restatement (Second) of Torts §920(A) cmt. b:

As set forth above, the Restatement allows all injured plaintiffs to recover the reasonable value of medical expenses and does not distinguish between those who have private insurance, those whose expenses are paid by the government, or those who receive their treatment on a gratuitous basis.

Later Wills, id. at 418-19, 892 N.E.2d at 1033 made the same point in equally forceful terms:

Under the reasonable-value approach that we have adopted, the fact that the collateral source was the government instead of a private insurance company is a distinction without a difference. All plaintiffs are entitled to seek to recover the full reasonable value of their medical expenses.*fn2 Thus defendants' Motion 5 is flat-out denied.

Plaintiff's Motions in Limine

Plaintiff's Motion 1 (Dkt. 71) asks that defendants be barred from introducing evidence referring to the Aurora Police Department's internal investigation. Defendants respond by pointing to paragraphs in the First Amended Complaint ("FAC") that are framed in Monell terms. If that is indeed part of the gravamen of plaintiff's claim, the answer to plaintiff's Motion 1 would be quite different (and more complex) than the straight-out grant of the motion that would apply in the absence of Monell contentions. Plaintiff's Motion 1 is therefore denied at this time, without prejudice to its ...

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