# Harris v. Wingo

> District Court, M.D. Florida · October 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10108803

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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ade E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE

Copies:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10108803. Public record. Not legal advice.