Milligan v. Rambosk

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MATTHEW MILLIGAN,

Plaintiff,

v. Case No: 2:20-cv-403-FtM-29MRM

KEVIN RAMBOSK, in his

official capacity as Sheriff

of Collier County, Florida,

Defendant.

OPINION AND ORDER

This matter comes before the Court on review of defendant’s

Motion in Limine (Doc. #47), filed on March 4, 2022. Plaintiff

filed a Response in Opposition (Doc. #58) on March 21, 2022. For

the reasons set forth below, the motion is denied.

The parties are well-acquainted with the facts of this case,

as set forth in the Joint Final Pretrial Statement (Doc. #50) and

the Court’s recent Opinion and Order denying defendant Sheriff

Kevin J. Rambosk’s motion for summary judgment. (Doc. #41.)

Plaintiff Matthew Milligan, who has Ataxic Cerebral Palsy (ACP)

and Paroxysmal Kinesigenic Dyskinesia (PKD), asserts that

defendant Keven Rambosk, in his official capacity as Sheriff of

Collier County, engaged in employment discrimination against him

in violation of the Americans with Disabilities Act (ADA) and the

Florida Civil Rights Act of 1992 (FCRA). (Doc. #50, p. 2.)

Defendant now moves to exclude evidence that he anticipates

Plaintiff will introduce at the trial scheduled in this matter on

April 11, 2022.

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 WL 4527509, at *1, 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.” Harris v. Wingo, No.

2:18-CV-17-FTM-29MRM, 2021 WL 5028201, at *1 (M.D. Fla. Oct. 29,

2021) (cleaned up). 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,”

Harris, 2021 WL 5028201, at *1, and does not preserve an issue for

appellate review. United States v. Gari, 572 F.3d 1352, 1356 n.2

(11th Cir. 2009).

II.

Defendant seeks to preclude certain evidence from being

introduced at trial, arguing it is irrelevant, or is unfairly

prejudicial or may confuse and mislead the jury. (Doc. #47, p. 2.)

In particular, Defendant requests that the Court exclude the

following: (1) Plaintiff’s lack of spams after he resigned from

employment with CCSO; (2) Comments made by Corporal Michael Sweely

to Plaintiff on the morning of March 30, 2019; (3) Opinion

testimony from Dr. Osterman as to whether Plaintiff can perform

the essential functions of a CCSO deputy sheriff; and (4)

speculative hypotheticals about unidentified deputies who could

experience medical conditions while on the job. (Id.)

The Court will address Defendant’s arguments in turn.

(1) Plaintiff’s Lack of Spams Post-CCSO Employment

Defendant argues that because the relevant time for assessing

disability discrimination claims is the time of the alleged

discriminatory act, any evidence relating to Plaintiff’s lack of

PKD spams after his CCSO employment is irrelevant and should be

excluded. Defendant maintains that such evidence constitutes

irrelevant hindsight evidence and may be unfairly prejudicial

under Rule 403. (Doc. #47, pp. 4-6.) Plaintiff responds that his

proposed testimony, that he has not experienced PKD spams since

taking Cabatrol on May 8, 2019 is relevant, and is not confusing,

misleading, or unduly prejudicial. Plaintiff argues that this

testimony and/or evidence directly relates to whether Plaintiff

was a qualified individual, and not a direct threat, which is an

issue the jury must decide. The Court agrees with Plaintiff.

Defendant has argued that Plaintiff does not qualify for ADA

protections because he is not a qualified individual since he posed

a direct threat to his safety and the safety of others in light of

his PKD-induced spasms. Determining whether Plaintiff poses a

direct threat includes consideration of (1) the duration of the

risk; (2) the nature and severity of the potential harm; (3) the

likelihood that the potential harm will occur; and (4) the

imminence of the potential harm. Chevron U.S.A. Inc. v. Echazabal,

536 U.S. 73, 86 (2002) (quoting 29 C.F.R. § 1630.2(r)). In his

motion in limine, Defendant states that the Sheriff’s Office was

aware that Plaintiff was taking medication for his PKD, which at

most, had “uncertain potential” to control his spasms. (Doc. #47,

p. 5.) Testimony or evidence that contradicts Defendant’s position

that Plaintiff was a direct threat, and demonstrates that his PKD

spasms were not likely to occur, nor was harm imminent, is relevant

to Plaintiff’s ADA claim and goes to factual disputes that may

only be resolved by a jury.

The Court is also unconvinced by Defendant’s alternative

argument that such evidence would be unfairly prejudicial under

Rule 403 of the Federal Rules of Evidence. (Doc. #47, pp. 6-7.)

The lack of PKD spasms is directly related to whether Plaintiff

was a qualified individual or whether Plaintiff posed a direct

threat to himself and others. Accordingly, the probative value of

the evidence outweighs the risk of prejudice, and the evidence is

admissible. See United States v. Norton, 867 F.2d 1354, 1361 (11th

Cir. 1989) ("Rule 403 is an extraordinary remedy which should be

used only sparingly since it permits the trial court to exclude

concededly probative evidence. The balance under the Rule,

therefore, should be struck in favor of admissibility." (marks and

citations omitted)).

(2) Corporal Sweely’s March 30, 2019 Comments

Defendant seeks to exclude comments made by Corporal Michael

Sweely on the morning of March 30, 2019, regarding Plaintiff’s

physical fitness and coordination. (Doc. #47, p. 7.) Defendant

argues that Plaintiff seeks to admit this evidence for the sole

purpose of attributing discriminatory intent on behalf of

Defendant, but Corporal Sweely was not a decision-maker, nor was

he involved in Defendant’s employment decisions. (Id., p. 8.)

Defendant therefore asserts that Corporal Sweely’s statements

would confuse the jury and should be excluded under Federal Rule

of Evidence 403. (Id., p. 9.)

Plaintiff, on the other hand, asserts that under Rule 608(b)

Corporal Sweely’s statements are admissible for impeachment

purposes to demonstrate bias. (Doc. #58, p. 6.) Plaintiff maintains

that Corporal Sweely was the present during the March 30, 2019

incident that led to Plaintiff’s removal from the deputy position,

and that there is a dispute about the facts and context of this

incident. (Id., p. 5.) Plaintiff notes that Corporal Sweely’s

incident report was also sent to Dr. Wolff, who considered and

summarized the report in his fitness for duty evaluation. (Id.)

According to Plaintiff, he does not intend to offer any statements

from Corporal Sweely as evidence of discriminatory intent, rather

he believes that statements about Plaintiff’s fitness and

coordination, as well as Corporal Sweely’s March 30, 2019 incident

report, address whether the Sheriff relied upon the “best available

objective evidence” in determining that Plaintiff was not fit for

duty and posed a direct threat. (Id.)

Corporal Sweely’s March 2019 incident report is relevant to

the case, as it was considered by Dr. Wolff and summarized in his

fitness for duty evaluation. There are factual disputes that

remain as to what occurred during the March 30, 2019, that are not

properly resolved by Defendant’s motion. See Burkhart v. R.J.

Reynolds Tobacco Co., 2014 U.S. Dist. LEXIS 200593, 2014 WL

12617550, *4 (M.D. Fla. Apr. 30, 2014) ("[A] motion in limine

should not be used to resolve factual disputes or weigh

evidence."). With regard to any statements made by Corporal Sweely

concerning Plaintiff’s fitness and coordination, extrinsic

evidence for impeachment purposes such as bias would be permissible

under Rule 608(b). Abousharkh v. Jenkins Nissan, Inc., No. 8:20-

cv-1036-VMC-AEP, 2021 U.S. Dist. LEXIS 177221, at *5 (M.D. Fla.

Sep. 17, 2021) (citing United States v. Taylor, 426 F. App'x 702,

705 (11th Cir. 2011)("Rule 608(b) provides that a party may not

introduce extrinsic evidence to attack a witness's character for

truthfulness. The rule does not, however, prohibit a party from

using extrinsic evidence for other impeachment purposes, such as

to show bias . . . .")). This portion of Defendant’s motion is

denied, but Defendant may re-raise this issue at trial. See

Burkhart, 2014 WL 12617550, at *4 ("Denial of a motion in limine

does not necessarily mean that all evidence contemplated by the

motion will be admitted to trial. Denial merely means that without

the context of trial, the court is unable to determine whether the

evidence in question should be excluded." (citation omitted)).

(3) Dr. Osterman’s Opinion Testimony

Defendant seeks to exclude opinion testimony from Dr. John

Osterman, Plaintiff’s treating physician, about whether Plaintiff

was able to perform the essential functions of a CCSO road patrol

deputy. Defendant argues such testimony is improper and

impermissible because Dr. Osterman never evaluated Plaintiff

regarding his ability to perform the essential functions of the

CCSO deputy position. Defendant also requests that the Court

exclude Dr. Osterman’s June 2018 evaluation for a Customs and

Border Protection Officer position as it is irrelevant and

inadmissible. (Doc. #47, pp. 9-11.) Plaintiff opposes Defendant’s

motion, arguing it is premature and should be reserved for trial

as Dr. Osterman may lay appropriate foundation for his knowledge

and provide testimony allowed by a treating physician. (Doc. #58,

p. 7.)

The Court agrees with Plaintiff that it would be premature to

exclude such evidence on a motion in limine. According to the

parties’ Joint Pretrial Statement, Dr. Osterman may be called as

a lay witness during the trial. A treating physician may offer

lay testimony about the treatment of the party, and may provide

opinion testimony “based on his experience as a physician and [when

it is] clearly helpful to an understanding of his decision making

process in the situation.” Williams v. Mast Biosurgery USA, Inc.,

644 F.3d 1312, 1317-18 (11th Cir. 2011)(citations omitted). The

exact boundaries of proper lay witness testimony will have to be

addressed at trial by way of specific objections to specific

testimony. See Torres v. First Transit, Inc., No. 17-cv-81162-

BLOOM/Reinhart, 2018 U.S. Dist. LEXIS 131565, at *9 (S.D. Fla.

Aug. 6, 2018) (noting that "[t]he exact boundaries of [a] . . .

physician's testimony may need to be addressed with specific

objections to specific testimony in the context of trial".).

The Court also declines to exclude Dr. Osterman’s 2018

evaluation. In determining Plaintiff was not fit for duty as a

road patrol deputy and posed a direct threat, Defendant relied

upon Dr. Wolff’s medical opinion stating the same. In reaching

his medical opinion, however, Dr. Wolff reviewed Dr. Osterman’s

2018 evaluation and summarized it in his fitness for duty report.

Thus, Dr. Osterman’s 2018 evaluation is relevant to the instant

case as it bears on whether Plaintiff posed a direct threat and

whether the Sheriff relied upon the best available objective

evidence in determining Plaintiff was unfit for duty, both of which

are factual disputes to be resolved by the jury. Defendant’s

motion to exclude Dr. Osterman’s testimony is therefore denied.

See Burkhart, 2014 WL 12617550, *4.

(4) Speculative Hypotheticals

Finally, Defendant seeks to prevent Plaintiff from referring

to hypothetical scenarios regarding unidentified deputies, who

theoretically could suffer a medical event while on the job, in an

effort to undermine the Sheriff’s Office’s concern about

Plaintiff’s fitness for duty as a road patrol deputy. (Doc. #47,

p. 11.) Defendant argues that Plaintiff’s PKD spasms actually

occurred when he was driving a patrol car, and thus the Sheriff

was not faced with a speculative situation when determining whether

Plaintiff posed a direct threat to the safety of himself and

others. (Id., pp. 11-13.) Defendant maintains that introduction

of any such hypotheticals will only serve to mislead the jury to

impermissibly draw comparisons between Plaintiff and

hypotheticals. (Id., p. 13.)

In response, Plaintiff argues that while he does not intend

to offer evidence of other deputy sheriffs suffering from medical

conditions, he should be given leeway to question the lack of

“guarantees” for a number of medical conditions (i.e., diabetic

attack, heart attack, stroke, or heart disease) suffered by deputy

sheriffs that may occur while driving patrol vehicles or performing

law enforcement duties. Plaintiff contends that such testimony

will assist the jury in determining whether Plaintiff posed a

direct threat, and whether the Sheriff’s decision to remove

Plaintiff from his position as a deputy was itself speculative.

(Doc. #58, pp. 7-8, citing EEOC v. Browning-Ferris, Inc., 262 F.

Supp. 2d 577, 587 (D. Md. 2002) (An employer may not “deny an

employment opportunity to an individual with a disability merely

because of a slightly increased risk. The risk can only be

considered when it poses a significant risk, i.e., high

probability, of substantial harm; a speculative or remote risk is

insufficient.”)).

The Court declines to grant Defendant’s motion to exclude

hypothetical evidence. It is unclear at this point whether there

is any danger that this issue will arise at trial, and therefore,

preemptive rulings might needlessly restrict legitimate evidence

and argument. See Wilson as Trustee of Peter J. Rodrigues

Irrevocable Life Ins. Trust v. Jackson Nat. Life Ins. Co., No.

3:15-cv-926-J-39JBT, 2018 WL 4956738, at *1 (S.D. Fla. Feb. 2,

2018) (motions in limine "should be limited to specific pieces of

evidence and not serve as reinforcement regarding the various rules

governing trial"). The Court will withhold considering any such

matter until it is necessary to do so at trial upon proper and

timely objection. See United States v. Gonzalez, 718 F. Supp. 2d

1341, 1345 (S.D. Fla. 2010) ("Unless evidence meets [the] high

standard" of being "clearly inadmissible," "evidentiary rulings

should be deferred until trial so that questions of foundation,

relevancy, and potential prejudice may be resolved in proper

context.").

Accordingly, it is now

ORDERED:

Defendant’s Motion in Limine (Doc. #47) is DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 25th day of

March, 2022.

Z tkicob

JQH E. STEELE

SHMIOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of record