Harris v. Wingo

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ROBERT DALE HARRIS,

Plaintiff,

v. Case No: 2:18-cv-17-FtM-29MRM

KASEY P. WINGO,

individually, and MICHAEL D.

CHAPMAN, individually,

Defendants.

OPINION AND ORDER

This matter comes before the Court on six motions in limine

filed by either plaintiff or one of the defendants. (Docs. ##223,

225, 226, 227, 228, 229.) The Court heard oral argument on some of

the motions at the final pretrial conference on October 29, 2021.

The motions are resolved as set forth below.

I.

A motion in limine is a "motion, whether made before or during

trial, to exclude anticipated prejudicial evidence before the

evidence is actually offered." Luce v. United States, 469 U.S.

38, 40 n.2 (1984). These motions "are generally disfavored."

Acevedo v. NCL (Bah.) Ltd., 317 F. Supp. 3d 1188, 1192 (S.D. Fla.

2017). "Evidence is excluded upon a motion in limine only if the

evidence is clearly inadmissible for any purpose." Id. "A motion

in limine is not the proper vehicle to resolve substantive issues,

to test issues of law, or to address or narrow the issues to be

tried." McHale v. Crown Equip. Corp., No. 8:19-cv-707-VMC-SPF,

2021 U.S. Dist. LEXIS 194217, at *3 (M.D. Fla. Oct. 1, 2021)

(citing LSQ Funding Grp. v. EDS Field Servs., 879 F. Supp. 2d 1320,

1337 (M.D. Fla. 2012)). Nor may "[a] party . . . use a motion in

limine to sterilize the other party's presentation of the case."

Johnson v. Gen. Mills Inc., 2012 U.S. Dist. LEXIS 199926, 2012 WL

13015023, *1 (C.D. Cal. May 7, 2012). Additionally, as the Supreme

Court has cautioned:

The ruling is subject to change when the case

unfolds, particularly if the actual testimony

differs from what was contained in the

defendant's proffer. Indeed even if nothing

unexpected happens at trial, the district

judge is free, in the exercise of sound

judicial discretion, to alter a previous in

limine ruling.

Luce, 469 U.S. at 41-42. A denial of a motion in limine is not a

ruling which affirmatively admits any particular evidence. See

Campbell v. Briere, No. 6:17-cv-1036-Orl-TBS, 2018 U.S. Dist.

LEXIS 136159, at *4 (M.D. Fla. Aug. 13, 2018).

II.

The operative pleading is Plaintiff’s Amended Complaint (Doc.

51). The parties agree that after summary judgment the following

claims remain for trial against the two deputies in their

individual capacities:

• Count II – False Arrest against Deputy Wingo under 42

U.S.C. § 1983

• Count II – Excessive Force against Deputy Wingo under

42 U.S.C. § 1983

• Count III – Malicious Prosecution against Deputy Wingo

under 42 U.S.C. § 1983

• Count V – False Arrest against Deputy Chapman under 42

U.S.C. § 1983

• Count V - Excessive Force against Deputy Chapman under

42 U.S.C. § 1983

• Count VI – Malicious Prosecution against Deputy Wingo

under Florida law

• Count VI – Malicious Prosecution against Deputy Chapman

under 42 U.S.C. § 1983

• Count VII – Malicious Prosecution against Deputy

Chapman under Florida law

• Count XI – Assault and Battery against Deputies Chapman

and Wingo under Florida law

• Count XIII – First Amendment retaliation against

Deputies Chapman and Wingo under 42 U.S.C. § 1983.

(Doc. #232, pp. 2-3.) Both sides have filed motions in limine,

which are resolved below.

A. Plaintiff’s Motion in Limine to Limit the Trial to

Damages Only Based on the Law of the Case (Doc. #223);

Response (Doc. # 235)

Read liberally, Plaintiff moves in limine to exclude any

evidence contesting the liability of defendants for the claims

which remain in the Amended Complaint. Plaintiff asserts that

only the issue of damages remains for a jury trial because the

Eleventh Circuit Court of Appeals determined that the deputies

were not entitled to qualified immunity. Plaintiff argues that

the Eleventh Circuit has thus determined the issue of liability,

which remains as the law of the case. Not surprisingly, the

deputies do not see it the same way.

The defendant deputies had filed a motion for summary judgment

in the district court arguing they were entitled to qualified

immunity. The district court denied the motion, and defendants

took an interlocutory appeal as to three of the claims brought by

plaintiff. (Docs. ##173, 174, 176, 179.) The Eleventh Circuit

affirmed the denial in an unpublished opinion. Harris v. Wingo,

845 Fed. Appx. 892 (11th Cir. 2021). In relevant part, the

Eleventh Circuit stated that: the facts must be viewed in the light

most favorable to plaintiff Harris, and disputed facts were

resolved in plaintiff’s favor, Id. at 892, 894, 896; the appeal

concerned only three of plaintiff’s claims – false arrest,

malicious prosecution, and First Amendment retaliation, Id. at

893; taking the undisputed facts (largely from the audio recording)

in the light most favorable to plaintiff, the officers did not

have arguable probable cause to arrest plaintiff for loitering and

prowling or for resisting arrest without violence, Id. at 894-96;

because the deputies lacked arguable probable cause to arrest, the

arrest violated plaintiff’s clearly established Fourth Amendment

rights, and the deputies were not entitled to qualified immunity,

Id. at 896.

Defendants recognize, as they must, that “an appellate

decision on an issue must be followed in all subsequent trial court

proceedings.” (Doc. #235, p. 6, quoting Stanley v. Broward Cty.

Sheriff, 773 F. App’x 1065, 1067 (11th Cir. 2019)). Defendants

argue, however, that the law of the case doctrine does not

foreclose litigating the issue of liability, as well as damages,

in this trial. The Court agrees.

“The law of the case doctrine, however, bars consideration of

only those legal issues that were actually, or by necessary

implication, decided in the former proceeding.” Oladeinde v. City

of Birmingham, 230 F.3d 1275, 1288 (11th Cir. 2000) (internal

quotations and citations omitted). Further, an exception to this

doctrine applies when substantially different evidence is

produced. Jackson v. State of Alabama State Tenure Com'n, 405

F.3d 1276, 1283 (11th Cir. 2005). The Court therefore must first

identify the legal issues the Eleventh Circuit “actually, or by

necessary implication,” decided. Id.

Nothing in the Eleventh Circuit decision determined that the

deputies were liable for all of the claims brought by plaintiff.

Indeed, not all of the claims had been the subject of the summary

judgment motion, only those relating to false arrest, malicious

prosecution, and First Amendment retaliation. Even as to these

three types of claim, the Eleventh Circuit did not decide that the

deputies were liable. Rather, the law of the case is that when

considering only the undisputed facts, and viewing them in the

light most favorable to plaintiff, the deputies lacked arguable

probable cause to arrest and were therefore not entitled to

qualified immunity. That remains binding, but does not preclude

trial as to liability unless there are no additional facts

presented at trial. While disputed facts could not be considered

at the summary judgment stage, defendants state they “can (and

will) show” facts independent of the audio recording to establish

that plaintiff committed a crime. (Doc. #235, p. 5.) “When the

record changes, which is to say when the evidence and the

inferences that may be drawn from it change, the issue presented

changes as well. The first exception to the doctrine recognizes

that the law of the case is the law made on a given set of facts,

not law yet to be made on different facts.” Jackson, 405 F.3d at

1283. Accordingly, the motion in limine is denied.

The Court leaves the dispute over the use of special

interrogatories until the jury charge conference. Such a dispute

is not a matter which is properly addressed in an in limine motion.

B. Plaintiff’s Opposed Motion in Limine/Daubert Motion

Directed to the Testimony of Defense Expert Dr. Lori

Butts (Doc. #225); Response (Doc. #245)

C. Plaintiff’s Opposed Motion in Limine/Daubert Motion

Directed to the Testimony of Defendants’ Expert Dr.

Richard Hough (Doc. #226); Response (Doc. #244)

The admission of expert testimony is governed by Rule 702 of

the Federal Rules of Evidence. United States v. Perry, No. 16-

11358, 2021 WL 4448600, 2021 U.S. App. LEXIS 29333, at *16 (11th

Cir. Sep. 29, 2021). Rule 702 provides that:

A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify in

the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or

other specialized knowledge will help the

trier of fact to understand the evidence or to

determine a fact in issue;

(b) the testimony is based on sufficient

facts or data;

(c) the testimony is the product of reliable

principles and methods; and

(d) the expert has reliably applied the

principles and methods to the facts of the

case.

Fed. R. Evid. 702. Rule 702 contemplates that the district court

serve as gatekeeper for the admission of such testimony in order

to ensure that any and all expert testimony is both relevant and

reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589

(1993); Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1183

(11th Cir. 2013). “The Supreme Court did not intend, however,

that the gatekeeper role supplant the adversary system or the role

of the jury: vigorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are the

traditional and appropriate means of attacking shaky but

admissible evidence.” McDowell v. Brown, 392 F.3d 1283, 1299 (11th

Cir. 2004) (marks and citations omitted).

In determining the admissibility of expert testimony under

Rule 702, the Court applies a “rigorous” three-part inquiry.

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en

banc). Expert testimony is admissible if (1) the expert is

qualified to testify on the topic at issue, (2) the methodology

used by the expert is sufficiently reliable, and (3) the testimony

will assist the trier of fact. Perry, 2021 U.S. App. LEXIS 29333,

at *16; Moore v. Intuitive Surgical, Inc., 995 F.3d 839, (11th Cir

2021). The burden of laying the proper foundation for the admission

of expert testimony “is on the party offering the expert, and the

admissibility must be shown by a preponderance of the evidence.”

Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010).

The admission of expert testimony is a matter within the discretion

of the district court, which is accorded considerable leeway in

making its determination. Frazier, 387 F.3d at 1258.

The first requirement for the admissibility of expert

testimony is that the expert is qualified to testify competently

regarding the matters he or she intends to address. Frazier, 387

F.3d at 1269-61). Rule 702 permits a person to qualify as an

expert based upon knowledge, skill, experience, training, or

education. Frazier, 387 F.3d at 1260-61; Perry, 2021 U.S. App.

LEXIS 29333, at *17.

The second inquiry for determining the admissibility of

expert testimony is whether the methodology used by the expert is

sufficiently reliable. Tampa Bay Water, 731 F.3d at 1183. The

reliability prong is distinct from an expert's qualifications;

thus, an expert can be qualified but his opinions unreliable. See

Moore, 995 F.3d at 852; see also Frazier, 387 F.3d at 1261. The

Supreme Court has provided a non-exhaustive list of factors to

guide courts in assessing the reliability of expert opinions: "(1)

whether the expert's theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3)

the known or potential rate of error of the particular scientific

technique; and (4) whether the technique is generally accepted in

the scientific community." Kilpatrick, 613 F.3d at 1335 (citing

Daubert, 509 U.S. at 593-94). Although these criteria are more

applicable to assessing the reliability of scientific opinions,

they "may be used to evaluate the reliability of non-scientific,

experience-based testimony." Frazier, 387 F.3d at 1262 (citing

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999)).

"Exactly how reliability is evaluated may vary from case to case,

but what remains constant is the requirement that the trial judge

evaluate the reliability of the testimony before allowing its

admission at trial." Id.

The third requirement for admissibility is that the expert

testimony must assist the trier of fact. “[E]xpert testimony is

admissible if it concerns matters that are beyond the understanding

of the average lay person. Proffered expert testimony generally

will not help the trier of fact when it offers nothing more than

what lawyers for the parties can argue in closing arguments."

Frazier, 387 F.3d at 1262-63; see also Edwards v. Shanley, 580 F.

App'x 816, 823 (11th Cir. 2014). “This condition goes primarily

to relevance.” Daubert, 509 U.S. at 591.

(1) Plaintiff’s Opposed Motion in Limine/Daubert Motion

Directed to the Testimony of Defense Expert Dr. Lori

Butts (Doc. #225)

Plaintiff seeks to exclude the testimony of Dr. Butts

regarding plaintiff’s claim of psychological damages. While

untimely, the Court will nonetheless consider plaintiff’s motion.

Plaintiff argues that Dr. Butts does not satisfy any of the

requirements of Daubert and its progeny. After reviewing the

record, the Court finds that defendants have established that Dr.

Butts is qualified, her methodology is sufficiently reliable, and

that her testimony will assist the jury in reaching a decision as

to plaintiff’s psychological damages. As previously noted,

“vigorous cross-examination, presentation of contrary evidence,

and careful instruction on the burden of proof are the traditional

and appropriate means of attacking shaky but admissible evidence.”

McDowell, 392 F.3d at, 1299 (marks and citations omitted). This

motion in limine is denied.

As discussed at the final pretrial conference, denial of the

motion in limine does not admit any particular testimony from Dr.

Butts. Counsel is required to make objections to specific

testimony if the specific testimony is believed to be improper.

(2) Plaintiff’s Opposed Motion in Limine/Daubert Motion Directed

to the Testimony of Defendants’ Expert Dr. Richard Hough (Doc.

#226)

Plaintiff seeks to exclude the testimony of Dr Hough

concerning the current practices and professional standards of law

enforcement and the facts surrounding the April 4, 2014 arrest.

While untimely, the Court will consider the motion.

Plaintiff seeks to exclude expert testimony as to the content

of videotapes (as not needing expert testimony), and the policies

and procedures of the Sheriff’s Office and whether they were

followed (as being irrelevant since the Sheriff is no longer a

defendant). The Court agrees that testimony from an expert is not

helpful to the jury if it simply states what the expert sees or

hears on the recording. Prosper v. Martin, 989 F.3d 1242, 1250

(11th Cir. 2021). At the final pretrial conference defense

counsel stated that this was not the type of testimony which would

be elicited from Dr. Hough. Accordingly, this portion of the in

limine motion is denied. Additionally, while compliance with

professional standards is not dispositive of a claim, the Court

finds such testimony to be relevant. Therefore, this portion of

the in limine motion is also denied. Again, counsel must voice

objections to specific testimony at trial.

D. Plaintiff’s Opposed Motion in Limine . . . To Exclude

Evidence Related to the Plaintiff[‘s . . .] Arrest and

Juvenile Record (Doc. #227); Response (Doc. #241).

Plaintiff seeks to exclude argument or testimony pertaining

to his juvenile and adult arrests. Defendants respond that they

do not seek to introduce court records of any juvenile arrest or

detention, but would elicit such information which was given by

plaintiff to Dr. Butts during his psychological examination. (Doc.

#241, pp. 2-3.) Defendants further argue that the motion is

premature, but that prior arrests are relevant to his claimed

damages. (Id. at 3-4.)

As the discussion at the final pretrial conference indicated,

resolution of this motion in the pretrial context is difficult

because of the need to know the actual testimony which has

previously been presented to the jury. Plaintiff’s arrests and

juvenile record may or may not be admissible, but the Court simply

cannot tell at this stage of the proceedings. It is clear,

however, that such evidence would potentially be unduly

prejudicial. Therefore, the Court will grant the motion to the

extent that defense counsel may not refer to or elicit information

about plaintiff’s other arrests or his juvenile record with prior

approval of the Court.

E. Defendant Kasey Wingo’s Motion in Limine (Doc. #228);

Response (Doc. #228)

F. Defendant Michael D. Chapman’s Motion in Limine (Doc.

#229); Response (Doc. #229)

Plaintiff has agreed not to utilize the information

identified in the motions. Therefore, the Court will grant the

motions to the extent that plaintiff may not refer to or elicit

such information with prior approval of the Court.

Accordingly, it is hereby

ORDERED:

1. Plaintiff’s Motion in Limine to Limit the Trial to Damages

Only Based on the Law of the Case (Doc. #223) is DENIED.

2. Plaintiff’s Opposed Motion in Limine/Daubert Motion Directed

to the Testimony of Defense Expert Dr. Lori Butts (Doc. #225)

is DENIED.

3. Plaintiff’s Opposed Motion in Limine/Daubert Motion Directed

to the Testimony of Defendants’ Expert Dr. Richard Hough (Doc.

#226) is DENIED.

4. Plaintiff’s Opposed Motion in Limine .. . To Exclude Evidence

Related to the Plaintiff[‘s .. .] Arrest and Juvenile Record

(Doc. #227) is GRANTED to the extent that defense counsel may

not refer to or elicit information about plaintiff’s other

arrests or his juvenile record with prior approval of the

Court.

5. Defendant Kasey Wingo’s Motion in Limine (Doc. #228) is

GRANTED to the extent that plaintiff may not refer to or

elicit such information with prior approval of the Court.

6. Defendant Michael D. Chapman’s Motion in Limine (Doc. #229)

is GRANTED to the extent that plaintiff may not refer to or

elicit such information with prior approval of the Court.

DONE and ORDERED at Fort Myers, Florida, this 29th day

of October, 2021.

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SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record