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Cole v. Meeks

United States District Court, C.D. Illinois

September 24, 2019

STEVEN COLE, Plaintiff,
DETECTIVE SHAWN MEEKS, et al., Defendants.


          Michael M. Mihm, United States District Judge.

         Presently before the Court are Plaintiff’s Combined Motion for Judgment as a Matter of Law and Motion for New Trial (D. 164[1]) 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.


         On 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, [2] and Cole was set free.

         Shortly 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 Cole.

         Prior 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.

         As part 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.

         Trial 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.

         The 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.


         On 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.


         Motion for Judgment as a Matter of Law

         Rule 50 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).

         Motion for New Trial

         Rule 59 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).

         As it 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)).

         Failure 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.”).


         Cole 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.

         As a 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)).

         Here, 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.

         I. Trial Bifurcation

         In his 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.

         Notwithstanding 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 Cir. 2000).

         During 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.)

         In 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 Court ruled:

[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.

         The 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 DENIED.

         II. Exclusion of Expert Testimony

          Prior 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.

         Cole 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.

         In 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 41:12-24.

         The 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 been accidental.

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.

         Cole 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 ...

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