United States District Court, C.D. Illinois
MEMORANDUM OPINION AND ORDER
Michael M. Mihm, United States District Judge.
before the Court are Plaintiff’s Combined Motion for
Judgment as a Matter of Law and Motion for New Trial (D.
and Motion for Leave to File Reply (D. 178). For the reasons
stated herein, Plaintiff’s Combined Motion and Motion
for Leave to File Reply are DENIED. This case remains CLOSED.
September 7, 2012, Plaintiff Steven Cole was found guilty by
jury of predatory criminal sexual assault, along with other
crimes, of a 20-month-old girl which he adamantly denied. He
was subsequently sentenced to twenty-five years’
imprisonment at one of the State’s maximum-security
penitentiaries. While imprisoned, Cole suffered an assault
and harassment by fellow inmates, separation from his wife,
and estrangement from his community. His reputation was also
tarnished. After six years of incarceration, however, the
Illinois Court of Appeals overturned his conviction,
Cole was set free.
after his release, Cole brought the underlying claim arguing
the lead detective in his criminal investigation, Shawn
Meeks, proffered false testimony to a grand jury to secure
his indictment. Up until the grand jury, Cole argued, there
was no probable cause to issue a warrant for his arrest. Cole
asserted the prosecution was at a standstill until Meeks
approached one of the lead prosecutors from the Peoria County
State’s Attorney’s Office for advice. Meeks
maintained it was the Office that pressed forward with the
decision to present the case to a grand jury and asserted he
testified accurately in front of the grand jury as to what he
knew at the time. This Court found there existed an issue of
material fact as to whether Meeks lied to the grand jury, and
in so doing, was responsible for the malicious prosecution of
to trial, both parties filed extensive motions in
limine with the Court. Included in their motions, was
Meeks’ motion to bifurcate the liability and damages
portions of trial. In his motion, Meeks argued he would be
severely prejudiced if the jury were permitted to hear the
parade of horribles that Cole suffered while incarcerated. He
also argued the issue for the jury to determine was whether
he proffered false testimony to the grand jury to return an
indictment against Cole. Introducing collateral issues, Meeks
argued, including alternative theories of the
perpetrator’s identity, would conflate the issues and
confuse the jury. Cole countered by asserting malicious
prosecution cases had been tried successfully without
bifurcation and argued any prejudicial harm caused to Meeks
through the introduction of damages evidence could be cured
by a limiting instruction from the Court.
of their final pretrial order, both parties indicated they
intended to introduce two expert witnesses at trial.
Cole’s experts would testify to the timing and
causation of the victim’s injury and would refute the
state prosecution’s contention that Cole was the source
of the sperm found on a wipe at the victim’s
mother’s residence. Meeks’ experts would testify
that, despite a vasectomy twelve years prior, Cole could have
produced the sperm and that the state followed the proper
methodology in its presentation of its case to the grand
jury. The Court heard the parties’ arguments related to
excluding the opposing experts from testifying at trial at a
hearing on the parties’ motions in limine. The
Court also issued oral rulings on the motions, and the
parties ordered transcripts of the proceeding. At the
hearing, the Court excluded one expert from each party from
testifying at the bifurcated trial, but allowed one expert
from each party to testify during the damages phase.
took place in the middle of April 2019, and lasted four days.
During trial, the jury heard from two doctors who testified
that, in their medical opinion, the victim’s injury was
most consistent with non-accidental trauma caused by
penetration. One of the doctors testified that, in her
medical opinion, the injuries were most likely the result of
sexual assault. The jury also heard from Assistant
State’s Attorney (“ASA”) Stephen Pattelli,
who testified that a group of individuals from the
State’s Attorney’s Office (“SAO”)
would normally decide which cases to present to an empaneled
grand jury. Pattelli also testified that the SAO decided to
present Cole’s case to the grand jury, and that it was
the determination of the grand jury whether to return the
final indictment against Cole.
jury also heard from Defendant Meeks. Meeks testified that
based on the information he had at the time of his
investigation, there were three viable suspects for the
assault on the victim. Because he could not prove which of
the suspects could have committed the assault, he testified
that he presented his findings to an ASA who introduced the
idea of convening a grand jury. At the culmination of trial,
the jury reached a verdict in favor of Meeks and found him
not liable for the malicious prosecution of Cole.
April 18, 2019, after four days of testimony, the jury
returned a verdict finding Shawn Meeks not liable for the
malicious prosecution of Steven Cole. (D. 152.) On April 23,
2019, judgment was entered in favor of Meeks and the City of
Peoria. (D. 155) On May 16, 2019, Plaintiff filed his
Combined Motion for Judgment as a Matter of Law and Motion
for New Trial. (D. 164.) On July 2, 2019, Defendant filed his
response to Plaintiff’s Combined Motion. (D. 172.) On
July 17, 2019, Plaintiff filed his Motion for Leave to File
Reply and attached his reply. (D. 178.) This Order follows.
for Judgment as a Matter of Law
of the Federal Rules of Civil Procedure allows a district
court to enter judgment against a party who has been fully
heard on an issue during a jury trial if “a reasonable
jury would not have a legally sufficient evidentiary basis to
find for the party on that issue.” Fed.R.Civ.P. 50(a).
“[A] Rule 50(a) motion for judgment as a matter of law
must be made at the close of the evidence in order to bring a
posttrial Rule 50(b) motion for judgment as a matter of
law.” Petit v. City of Chicago, 239 F.Supp.2d
761, 767 (N.D. Ill. 2002) (citing Laborers’ Pension
Fund v. A & C Envtl., Inc., 301 F.3d 768, 775-76
(7th Cir. 2002)). “The purpose of requiring that the
motion be made after the submission of all the evidence, but
before the case is given to the jury, is to afford the
opposing party an opportunity to cure any defect in its case
before the jury retires.” Laborers’ Pension
Fund, 301 F.3d at 775. A Rule 50(b) motion “can be
granted only on grounds advanced in the preverdict
motion.” Fed.R.Civ.P. 50 advisory comm. note (2006
amend.); Passananti v. Cook Cty., 689 F.3d 655, 660
(7th Cir. 2012).
for New Trial
allows a court to order a new trial if “the verdict is
against the clear weight of the evidence or the trial was
unfair to the moving party.” Clarett v.
Roberts, 657 F.3d 664, 674 (7th Cir. 2011). A verdict
will be set aside contrary to the manifest weight of the
evidence only if “no rational jury” could have
rendered the verdict. Moore ex rel. Estate of Grady v.
Teulja, 546 F.3d 423, 427 (7th Cir. 2008). A court will
not “set aside a jury verdict if a reasonable basis
exists in the record to support the verdict, viewing the
evidence in the light most favorable to the prevailing party,
and leaving issues of credibility and weight of the evidence
to the jury.” Kapelanski v. Johnson, 390 F.3d
525, 530 (7th Cir. 2004). The Seventh Circuit has instructed
jury verdicts deserve particular deference in cases with
“simple issues but highly disputed facts.”
Latino v. Kaizer, 58 F.3d 310, 314 (7th Cir. 1995).
concerns attorney misconduct, the Court’s inquiry under
Rule 59 is similar to its inquiry under Rule 60(b)(3).
Venson v. Altamirano, 827 F.Supp.2d 857, 865 (N.D.
Ill. 2011) (citing Wharf v. Burlington N. R.R. Co.,
60 F.3d 631, 637 (9th Cir. 1995)). Rule 60(b)(3) provides
that a court may set aside a judgment if there is
“fraud . . ., misrepresentation, or misconduct by an
opposing party[.]” Fed.R.Civ.P. 60(b)(3). “To
obtain relief from judgment under Rule 60(b)(3), the moving
party must show that: ‘(1) it maintained a meritorious
claim at trial; . . . (2) because of the fraud,
misrepresentation or misconduct of the adverse party; (3) it
was prevented from fully and fairly presenting its
case at trial.’” Venson, 827
F.Supp.2d at 864 (quoting Walsh v. McCain Foods
Ltd., 81 F.3d 722, 726 (7th Cir. 1996)).
to object to misconduct at trial constitutes waiver of the
argument post trial. United States v. Socony-Vacuum Oil
Co., 310 U.S. 150, 238-39 (1940) (“[C]ounsel for
the defense cannot as a rule remain silent, interpose no
objections, and after a verdict has been returned seize for
the first time on the point that the comments to the jury
were improper and prejudicial.”); Gonzalez v. Volvo
of America Corp., 752 F.2d 295, 298 (7th Cir. 1985);
Gaik v. Mullins, No. 05-C-2335, 2009 WL 2391854, at
*10 (N.D. Ill. July 30, 2009) (“Plaintiff’s
failure to object to Defendant’s opening statements
constitutes a waiver of this argument.”).
brings his Combined Motion arguing there were erroneous
pretrial evidentiary rulings prohibiting his presentation of
material evidence at trial. He also argues he is entitled to
a new trial as a result of defense counsel’s violations
of rulings on certain motions in limine and because
there was insufficient evidence presented by Meeks to refute
the evidence that there was no probable cause to support his
indictment. Lastly, Cole argues the Court abused its
discretion by granting Meeks’ motion to bifurcate
trial. Meeks counters these arguments by asserting Cole is
procedurally barred from seeking judgment as a matter of law,
as Cole failed to make a Rule 50(a) motion at trial, and also
argues Cole’s Combined Motion lacks merit.
preliminary matter, the Court agrees with Meeks’
argument on forfeiture and notes Cole failed to raise any
Rule 50(a) motion for judgment as a matter of law during
trial. (see generally, D. 159-162.) For a district
court to consider a post-trial motion for judgment as a
matter of law, the motion must be predicated on a Rule 50(a)
motion made before the evidence is submitted to the jury.
McKinnon v. City of Berwyn, 750 F.2d 1383, 1388-89
(7th Cir. 1984). Where no Rule 50 motion is made prior to the
submission of evidence to the jury, any subsequent Rule 50
claim is forfeited. See Fed. R. Civ. P. 50 advisory
comm. note (2006 amend.) (“Because the Rule 50(b)
motion is only a renewal of the preverdict motion, it can be
granted only on grounds advanced in the preverdict
motion.”); Unitherm Food Sys., Inc. v.
Swift-Eckrich, Inc., 546 U.S. 394, 404-05 (2006)
(finding forfeiture of a claim not presented in a Rule 50(a)
motion and not renewed in a Rule 50(b) motion); Downes v.
Volkswagen of America, Inc., 41 F.3d 1132, 1139-40 (7th
Cir. 1994) (“the Advisory Committee [has] made clear
that Rule 50 deliberately retain[ed] the requirement that a
motion for judgment be made prior to the close of the trial,
subject to renewal after a jury verdict has been
rendered.”) (internal citation omitted)).
Cole’s eligibility for judgment as a matter of law has
been forfeited, and the Court addresses the arguments made in
his Combined Motion under the guidelines of Rule 59(a). It
also addresses the arguments according to the four major
areas for relief he has identified.
Motion, Cole argues the Court abused its discretion in
granting Meeks’ pretrial motion to bifurcate the
liability and damages portions of trial. Cole asserts the
common element of malice could not be extricated from the
liability phase and that it was improper for the Court to
consider evidence relating to his underlying guilt or
innocence in determining the potential prejudice to the
opposing party. In reviewing the record, it is clear Cole
failed to make these objections in either his written
opposition to Meeks’ motion to bifurcate (D. 136) or
during oral arguments on the motions in limine. (D.
146 at 3-16). In Cole’s written opposition, he stated:
One wonders how limited Plaintiff would be in cross-examining
Meeks if the trial is bifurcated. For example, Plaintiff will
demonstrate through Meeks the awesome power his status as an
investigator instills in him. Through his conduct, such as
his testimony to the grand jury and at Plaintiff’s
trial, Meeks had the power to imprison Steven Cole for the
rest of his life. Meeks did so, demonstrating his malice, an
element of malicious prosecution. Meeks’s malice will
also be relevant to the damage phase, as it is an element of
punitive damages. Thus, not only would bifurcation fail to
shorten the trial, it could lengthen it and confuse the jury.
(D. 136 at 9.) Accordingly, Cole’s after-the-fact
objections on the issue of bifurcation, which he failed to
elucidate at or before trial, are waived.
waiver, Cole’s argument the Court impermissibly
bifurcated trial also fails on its merits. Rule 42 of the
Federal Rules of Civil Procedure provides, “to avoid
prejudice . . . the court may order a separate trial of one
or more separate issues, claims, crossclaims, counter claims,
or third-party claims.” Fed.R.Civ.P. 42(b). The Seventh
Circuit outlined a three-step test for determining when
bifurcation is appropriate. It instructed:
First, the trial judge must determine whether separate trials
would avoid prejudice to a party or promote judicial economy.
Only one of these criteria-avoidance of prejudice or judicial
economy-need be met before a court can order separation.
Next, the court must be satisfied that the decision to
bifurcate does not unfairly prejudice the non-moving party.
Finally, separate trials must not be granted if doing so
would violate the Seventh Amendment.
Houseman v. U.S. Aviation Underwriters, 171 F.3d
1117, 1121 (7th Cir. 1999) (internal citations omitted).
Satisfying just one of the criteria listed in Rule 42(b) is
enough for a court to order bifurcation, Treece v.
Hochstetler, 213 F.3d 360, 365 (7th Cir. 2000) (citing
Berry v. Deloney, 28 F.3d 604, 610 (7th Cir. 1994)),
and “[t]he district court has considerable discretion
to order the bifurcation of a trial, ” which will be
overturned “only upon a clear showing of abuse.”
Krocka v. City of Chicago, 203 F.3d 507, 516 (7th
the pretrial hearing on Meeks’ motion to bifurcate, he
argued, and the Court agreed, that a wide swath of
information that was irrelevant to his liability was going to
be introduced at trial. (D. 146 at 4:7-24.) That information,
continued Meeks, included evidence indicating Cole had a
vasectomy and was incapable of emitting sperm. Id.
It also included the argument Cole was innocent and
incarcerated for four years for a crime he did not commit.
Id. at 7:4-11. In addition, defense counsel argued
Cole was prepared to testify about the horrors he experienced
during his incarceration (id. at 20-22), the impact
on his marriage as a result of his prosecution (id.
at 22-24), and the emotional distress he suffered due to his
conviction (id. at 23-25). In the Court’s
determination, while this information would be relevant to
Cole’s potential damages, it was entirely irrelevant to
whether Meeks intentionally mislead the grand jury in order
to secure Cole’s criminal indictment. Id. at
10:21-23. More importantly, this information could severely
prejudice Meeks if the trial was permitted to continue as one
proceeding. (Id. at 9:10-14.)
terms of prejudice to Cole as a result of bifurcation, Cole
only argued the case failed to meet the requirements for
bifurcation and that bifurcating trial would “open the
door” to permitting the admission of evidence in the
damages phase that would not otherwise be admitted.
Id. at 13:22-14:4. The Court avoided a violation of
the Seventh Amendment prior to trial by declaring that trial
would proceed in two phases in front of the same jury.
Id. at 17:3-9. If the jury found in favor of Cole on
the issue of liability, it would move immediately into the
damages phase. Id. After reading the parties’
briefs and listening to oral arguments on the issue, the
[T]he evidence that would be presented on [the] issue of
liability . . . is pretty clear. Once we get past the issue
of liability, . . . the water gets very muddy. And I have
serious concerns about confusing the jury and the possibility
of unfair prejudice. So I’m going to grant the motion
for bifurcation ..... We will select a jury, present the
evidence -- you will present the evidence on liability. They
will return a finding. And then if their finding is a finding
of liability, then we’ll immediately proceed into the
damages phase. This may require an adjustment as to when your
people will be called, but that’s all right.
Id. at 16:20-17:9.
record fails to demonstrate the Court abused its discretion
by granting Meeks’ motion to bifurcate. The Court
carefully considered the arguments for and against
bifurcation and ultimately ruled in Meeks’ favor to
avoid unfair prejudice to him at trial. Id. at
9:9-14; 10:21-23; 13:18-21; 16:20-17:9. Its bifurcation
decision also failed to unfairly prejudice Cole, as Cole was
permitted to argue the decision to prosecute him was
arbitrary and ill-motivated, which he did on countless
occasions at trial. (see e.g., D. 159 at 44-64; D.
161 at 322-342; D. 162 at 121-149.) Alternatively, the jury
could have inferred malice from a lack of credible evidence
indicating Meeks had probable cause to secure Cole’s
indictment. (D. 151 at 22.) A jury instruction was drafted
and included on that specific issue. Id. Lastly,
Cole’s Seventh Amendment rights were not implicated
since the trial was separated into two separate phases yet
remained in front of the same jury. Accordingly, Cole’s
Motion for a New Trial on the issue of trial bifurcation is
Exclusion of Expert Testimony
to trial, the parties provided extensive argumentation on
their motions in limine. (See D. 106-134;
146.) In addition to their motions, each party indicated he
intended to introduce two expert witnesses at trial, and both
parties argued to exclude the other’s experts.
intended to call Ann Burgess, Ph.D., a registered nurse and
professor of psychiatric nursing, to testify to the possible
cause(s) and timing of the victim’s injury. (D. 98-2 at
1, 5-9.) Dr. Burgess would also testify to the
“typology of a child molester.” (D. 146 at
38:11-16.) Cole’s counsel also extrapolated that Dr.
Burgess would testify that the “damage to the [victim]
. . . . could have occurred by the mother performing
manipulations[;]” as the victim had well-documented
problems with constipation. Id. at 39:7-10.
response to Cole’s intention to offer Dr. Burgess as an
expert, defense counsel argued her testimony would
“simply try[ ] to make credibility determinations on
the evidence” (id. at 40:4-5); that there was
nothing about her methodology or credentials that would
indicate her testimony should be allowed (id. at
41:25-42:3); and that her testimony would be irrelevant to
the determination whether Meeks lied to the grand jury to
secure Cole’s indictment (id. at 41:1-5).
Defense counsel also argued Dr. Burgess would proffer an
unsubstantiated credibility determination that Cole did not
meet the criteria of a child molester. Id. at
Court excluded the testimony of Dr. Burgess during the
liability phase. Id. at 43. Specifically, her
testimony concerning the “well-developed body of
evidence about the history of people that molest children,
” as the testimony was irrelevant to the issue the jury
was to determine. Id. The issue before the jury was
whether Meeks lied to a grand jury during his investigation
in order to secure an indictment against Cole. Id.
at 5:22-6:1; 10:18-20. Although the Court excluded Dr.
Burgess from testifying during the liability phase, it did
allow her to testify during the damages phase that, in her
expert opinion, the victim’s injury could have been
accidental. Id. at 43:1-7. Coincidentally, the Court
had barred one of Meeks’ experts from testifying,
altogether, for similar relevancy objections from
Cole’s counsel. Id. at 21:7-22:1; 26:14-19. As
to the testimony of Dr. Burgess, the Court ruled:
I’m sure she’s a world-renowned expert on this
type of thing, but I’m not going to allow that part of
her testimony. However, I will allow the part of her
testimony where she’s going to opine, as I understand
it, that the cause of the injury [to the victim] could have
Id. at 43:1-6. As it related to the relevancy of
both parties’ expert testimony, the Court also stated:
[T]he concern I have about this -- and I have a similar
concern on all the experts -- is in looking at the --
especially in the context of a bifurcated trial where the
first element, that the defendant falsely testified, I
don’t think that what she says is relevant on that.
Number two, that the false testimony was caused in part or
whole by malice. I’m not sure about that either. So[, ]
I’m very concerned, and I’ll be curious what the
response is, but in terms of liability at least, I
don’t -- I’m having problems with her relevance.
Id. at 20:18-21:5.
now argues that restricting Dr. Burgess’ testimony to
the damages phase of trial was fatally prejudicial to his
cause, as her testimony was necessary to refute Meek’s
extensive testimony that the injury to the victim was
intentional. (D. 164 at 5.) Cole adds that he was prejudiced
in his ability to implicate the victim’s mother in
causing the injury, even though she admitted to performing
maneuvers to alleviate the child’s constipation.
Id. at 7. Cole argues the ...