Gaines v. Chicago Board Of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Asia Gaines, for herself and )

as next best friend of her )

minor child, “JC,” )

)

Plaintiff, )

)

)

v. ) No. 19 C 775

)

)

The Chicago Board of )

Education, Kristen A. Haynes, )

and Juanita Tyler, )

)

Defendants. )

Memorandum Opinion and Order

Before me are the parties’ motions in limine, which I resolve

as set forth below.

I. Plaintiff’s Motions

Plaintiff’s Motion in Limine No. 1

Plaintiff Asia Gaines moves to bar any argument, testimony,

evidence, reference, or suggestion that defendant Juanita Tyler

did not strike JC repeatedly in a washroom at his school on

September 20, 2018 with one or more belts which she had obtained

from defendant Kristen Haynes. The motion is granted in part and

denied in part.

After a bench trial in Illinois state court, Tyler was found

guilty of domestic battery of JC. See People v. Tyler, 18 DV 80766

(Ill. Cir. Ct.). That conviction was affirmed by a state appellate

court. People v. Tyler, 2023 IL App (1st) 210450-U. Plaintiff thus

argues that defendants should be barred from relitigating the

underlying facts based on the doctrine of collateral estoppel,

also known as issue preclusion.

Because the prior decision comes from an Illinois state court,

Illinois law of issue preclusion controls. See Creation Supply,

Inc. v. Selective Ins. Co. of the Se., 51 F.4th 759, 763 (7th Cir.

2022). Under Illinois law, the “minimum threshold requirements”

for application of issue preclusion are: “(1) the issue decided in

the prior adjudication is identical with the one presented in the

suit in question, (2) there was a final judgment on the merits in

the prior adjudication, and (3) the party against whom estoppel is

asserted was a party or in privity with a party to the prior

adjudication.” Gumma v. White, 833 N.E.2d 834, 843 (Ill. 2005)

(citations omitted). Plaintiff bears the burden of demonstrating

that these factors are met. Givens v. City of Chicago, --- N.E.3d

---, 2023 WL 6886085, at *11 (Ill. Oct. 19, 2023).

Plaintiff’s motion sweeps too broadly by seeking to bar “any”

argument regarding Tyler striking JC, since that would estop

defendant Chicago Board of Education (“the Board”) from so arguing,

even though the Board was not a party to the underlying criminal

case and was not in privity with Tyler. In other words, the third

element of issue preclusion is unmet as to the Board. Additionally,

though Haynes was a codefendant in the criminal proceeding,

plaintiff makes no suggestion that she actually litigated the issue

of Tyler’s battering of JC, as required for issue preclusion. Am.

Fam. Mut. Ins. Co. v. Savickas, 739 N.E.2d 445, 451 (Ill. 2000)

(citation omitted). And in any event, Haynes was acquitted.

Finally, though true that issue preclusion may apply to inferences

drawn from verdicts where such findings are necessarily implied by

the verdict, it was not necessarily implied by the verdict that

Tyler obtained the belt she used to beat JC from Haynes, even if

there was evidence presented during the criminal trial to support

that conclusion. Thus, issue preclusion is unavailable as to

whether Tyler obtained the belt from Haynes.

That means plaintiff has satisfied the threshold requirements

for issue preclusion only as to Tyler, and only as to the facts

that Tyler struck JC repeatedly in a washroom at his school on

September 20, 2018 with one or more belts. But that is not the end

of the inquiry. Even where the basic requirements of issue

preclusion are satisfied, as an equitable doctrine its application

is inappropriate if it will cause unfairness. Id.

Defendants argue that prohibiting Tyler from litigating these

facts would prejudice the Board and Haynes, and would confuse the

jury. Specifically, they argue that instructing the jury that they

must find as to Tyler that she struck JC with a belt in the school

bathroom, while permitting the other defendants to argue to the

contrary, could result in jury confusion. See 4/10/2018 Tr.,

Phillips v. City of Chicago, No. 14 C 9372 (N.D. Ill.), ECF 170

(denying motion in limine premised on issue preclusion in part

because the judge was “in a fog about how we would instruct the

jury. This issue has been decided with respect to Defendants X and

Y but not with respect to Defendant Z, and the evidence is the

same.”); Taylor v. City of Chicago, No. 14 C 737, 2021 WL 4401528,

at *6 (N.D. Ill. Sept. 27, 2021) (reaching a similar conclusion as

that reached in Phillips, on a motion for partial summary judgment

premised on issue preclusion).

There are, however, features of this case that distinguish it

from Phillips and Taylor. The prior proceedings here consisted of

a criminal trial and appeal, in which Tyler was convicted by proof

beyond a reasonable doubt, whereas the prior cases in Phillips and

Taylor were civil, where a preponderance of the evidence standard

governed. Were I to deny plaintiff’s motion on grounds of

unfairness and potential juror confusion, it would permit Tyler to

argue the facts already decided against her anew and could lead to

the anomalous result that, though Tyler was previously found beyond

a reasonable doubt to have committed the relevant acts, for

purposes of this trial she could be found not to have committed

them simply by a preponderance of the evidence. Such a result would

stir up significant federalism concerns, since Tyler’s criminal

conviction was in Illinois state court. In contrast, the prior

proceedings in Phillips and Taylor took place in federal court.

Nor will holding Tyler to her conviction unduly prejudice her

codefendants. For Haynes to be liable for the acts committed by

Tyler, plaintiff must prove additional facts to show that she aided

and abetted Tyler or conspired with her to commit them. And for

the Board to be liable, Haynes must be found liable.

In sum, Tyler has already had her day in court on these

issues, and she is not entitled to a do-over simply because her

codefendants might want to try their hand at arguing those issues.

Given the problems relitigation would pose, I grant the motion in

part as to Tyler on the following issues: that Tyler struck JC

repeatedly in a bathroom at his school on September 20, 2018 with

one or more belts. The motion is otherwise denied.

Plaintiff’s Motion in Limine No. 2

Plaintiff moves to bar any evidence that Haynes was found not

guilty of battery and child endangerment. The motion is granted.

Defendants argue that this request is inconsistent with

plaintiff’s request in her first motion in limine, since, in

defendants’ view, if portions of the criminal proceeding

establishing that Tyler committed certain acts control in this

litigation, then so too should those aspects of the criminal

proceeding in which Haynes was not found to have committed certain

acts. Defendants are mistaken. Courts have long understood the

peculiar position that acquittal in a prior criminal proceeding

inhabits: “Evidence of acquittal in a criminal action is generally

irrelevant and inadmissible in a civil case involving the same

incident since it constitutes a negative sort of conclusion lodged

in a finding of failure of the prosecution to sustain the burden

of proof beyond a reasonable doubt.” Est. of Moreland v. Dieter,

395 F.3d 747, 755 (7th Cir. 2005) (citations and internal quotation

marks omitted). While Tyler was found to have committed certain

acts beyond a reasonable doubt, Haynes was simply not found to

have committed certain acts beyond a reasonable doubt. Haynes was

not, as defendants’ argument would suggest, affirmatively found

not to have committed certain acts beyond a reasonable doubt, or

even by a preponderance of the evidence.

Plaintiff’s Motion in Limine No. 3

Plaintiff moves to bar all testimony, argument, and innuendo

that JC’s physical injuries from September 20, 2018 were caused by

his mother, father, or any other relative or person (besides

Tyler). The motion is granted.

The fate of this motion is tied to my disposition of

plaintiff’s first motion in limine, since defendants claim that

their purpose in introducing this evidence would be to argue that

Tyler did not beat JC on September 20, 2018, and that his physical

injuries from that date are from other incidents unrelated to

defendants. Since it will be established that Tyler in fact beat

JC with belts on September 20, 2018, it is difficult to see what

permissible purpose this evidence satisfies.

The motion can be granted on other grounds, too. The testimony

at issue was given by Tyler at her deposition. Tyler testified

that Mona--one of JC’s great aunts--had beaten JC in the past,

including in Tyler’s presence. See, e.g., Tyler Dep. at 58:20–

59:11, 108:20–109:1, 187:5–188:15, 273:5–275:22, ECF 323-12. She

also testified that Gaines was sometimes present for these

beatings, and that Gaines brought JC to Mona specifically so that

Mona could beat him. See, e.g., id. at 60:1–5, 275:15–276:3. In

defendants’ view, this testimony, coupled with Tyler’s additional

testimony that Mona had at least some contact with JC in 2018, see

id. at 62:16–23 (testifying that Mona sent JC to bible study in

the summer of 2018), could suggest an alternative source of JC’s

physical injuries from September 20, 2018. Furthermore, Tyler

testified generally that Gaines herself sometimes beat JC, id. at

273:5–20, and specifically that “after court”--presumably

following a court appearance in the state criminal proceeding--

Gaines followed Tyler to a store where Gaines admitted to Tyler

that she “whooped” her own son, and that she was glad she “got

[Tyler] on the news.” Id. at 312:8–314:23.

Defendants point to nothing in Tyler’s testimony, however,

suggesting that Mona, Gaines, or anyone else beat JC on September

20, 2018, or shortly before. Indeed, in Tyler’s testimony about

the exchange in which Gaines admitted that she herself beat JC,

Tyler states that Gaines did not specify when she beat JC. Id. at

314:19–23. To the extent that defendants seek to admit this

testimony for the purpose of showing that, because Mona or Gaines

may have physically disciplined JC in the past, it is possible

they did so around the September 20, 2018 incident, it is

inadmissible character evidence intended to establish propensity.

Fed. R. Evid. 404(b). Beyond that, the testimony is woefully

speculative as to the question of whether Mona or Gaines beat JC

on or just before the relevant date; Tyler’s testimony is general

and does not specify timeframes. Any probative value the testimony

might have is substantially outweighed by a danger to unfair

prejudice to plaintiff and the possibility of misleading the jury.

Plaintiff’s Motion in Limine No. 4

Plaintiff moves to bar all testimony, argument, and innuendo

that JC’s mother, father, or any other relative disciplined JC

through physical means. The motion is granted.

Defendants respond to this motion by characterizing it as

“more of the same” as plaintiff’s third motion in limine. Def.

Resp. at 3, ECF 336. They assert that such evidence would be

introduced to show that JC could have been beaten by another person

around September 20, 2018. Accordingly, this evidence is excluded

for the same reasons given in connection with plaintiff’s third

motion in limine.

Plaintiff’s Motion in Limine No. 5

Plaintiff moves to bar all evidence and testimony that Gaines

and Joseph Champ failed to intervene or report Mona Tyler’s alleged

physical abuse of JC in the distant past to Illinois Department of

Children & Family Services (“DCFS”) and/or the police. The motion

is granted for the reasons given in connection with the preceding

two motions, and for the additional reason that such evidence would

be irrelevant to the claims in this case.

Plaintiff’s Motion in Limine No. 6

Plaintiff moves to bar all examination and testimony

regarding JC’s mother’s and/or father’s and/or immediate family

members’ criminal background histories, including but not limited

to arrests, charges, and convictions. The motion is granted.

Because I have granted plaintiff’s motion to collaterally

estop Tyler from relitigating certain facts established in the

state criminal proceedings, defendants seek to admit some of

Gaines’ prior convictions and arrests, including: (1) two October

12, 2011 convictions for domestic battery and (2) four arrests for

domestic battery. Defendants do not develop any arguments in

response to plaintiff’s motion, however, so any such arguments are

waived. See Martin v. City of Chicago, No. 15-cv-04576, 2017 WL

2908770, at *9 (N.D. Ill. July 7, 2017) (finding waiver where

response to motion in limine objected “but cite[d] no reason or

authority” for the objection (citing M.G. Skinner & Assocs. Ins.

Agency, Inc. v. Norman-Spencer Agency, Inc., 845 F.3d 313, 321

(7th Cir. 2017))).

Plaintiff’s Motion in Limine No. 7

Plaintiff moves to bar all testimony, argument, and innuendo

regarding JC’s mother and/or father having sex, having children at

young ages, having children out of wedlock, having children with

other spouses, using drugs, being “irresponsible” or “bad

parents,” and whether they lived together and for how long. The

motion is granted in part and denied in part.

Defendants do not oppose excluding evidence about either of

JC’s parents having sex, so that part of the motion is granted,

but defendants oppose the remainder of the motion.

Central to plaintiff’s case is the issue of the alleged

emotional and psychological harm JC suffered due to the events on

September 20, 2018. The causes of psychological harm are

undoubtedly complex, and some of the evidence plaintiff wants to

exclude may be relevant to determining those causes here. Indeed,

consistent with my ruling on plaintiff’s fourteenth motion in

limine below, defendants’ expert expects to opine that some of

these circumstances of JC’s upbringing contributed to his mental

health problems. This evidence is not impermissible character

evidence because it is not being offered to establish any

particular propensity of Gaines or Champ; it is offered to explain

defendants’ theory of how JC came to have certain mental health

problems. Thus, other than the portion identified above, the motion

is denied.

Defendants will only be allowed to introduce this sort of

evidence to the extent it is relevant to Dr. McNaught’s expert

opinions. Otherwise, its probative value is likely outweighed by

its potential for unfair prejudice.

Plaintiff’s Motion in Limine No. 8

Plaintiff moves to bar all reference to and testimony

regarding Gaines’ employment status since 2019, including whether

she has been unemployed at any time since then or for how long.

The motion is granted.

Defendants argue that this evidence is probative of Gaines’

motive in filing this suit and seeking a judgment of over one

million dollars. It is permissible for defendants to argue that

Gaines’ motivation in bringing this suit is pecuniary. See, e.g.,

Patterson v. City of Chicago, No. 15-cv-4139, 2017 WL 770991, at

*12 (N.D. Ill. Feb. 28, 2017) (“Defendants may argue that

[plaintiff] is lying because there is a pecuniary motivation to do

so.” (citing orders from other cases)). But defendants can make

this argument without bringing in evidence of Gaines’ employment

status. The probative value of that evidence to support the obvious

point that one might bring a lawsuit for money is outweighed by

the risk that the evidence will unfairly prejudice Gaines in the

eyes of the jury. See Brooks v. City of Chicago, No. 13-cv-03090,

2015 WL 3545386, at *5 (N.D. Ill. June 5, 2015) (allowing argument

that plaintiff was motivated to bring suit “by financial need and

a desire to obtain money,” but excluding evidence regarding details

of plaintiff’s financial condition under Rule 403).

Plaintiff’s Motion in Limine No. 9

Plaintiff moves to bar any evidence that Gaines’ and Joseph

Champ’s children, including JC, slept in the same bed with them.

The motion is unopposed and is granted.

Plaintiff’s Motion in Limine No. 10

Plaintiff moves to bar all evidence relating to JC’s school

behavioral incidents and disciplinary history prior to September

20, 2018, and to bar evidence relating to certain incidents after

that date. The motion is granted in part and denied in part.

A.

Incidents prior to September 20, 2018 are relevant to the

issue of causation and damages.1 As discussed above, a central

component of plaintiff’s suit is the claim that JC suffered

psychologically and emotionally from the events of September 20,

1 Plaintiff’s motion focuses on the inappropriateness of such

evidence when it comes to whether Haynes’ actions on September 20,

2018 were reasonable. Since defendants offer an entirely different

basis for introducing this evidence and do not oppose the motion

for purposes of showing whether Haynes’ actions were reasonable,

the motion is granted on those grounds. Defendants will not be

allowed to introduce evidence of JC’s pre-September behavior for

the purpose of arguing that Haynes’ actions were reasonable. An

appropriate limiting instruction will be provided to the jury.

2018. If plaintiff wants to present evidence to the jury that JC’s

behavior, demeanor, and mental health changed based on the beating,

then defendants are entitled to present evidence suggesting that

these claimed problems existed prior to the incident too, or that

there was a smaller change in these aspects of JC’s life after the

incident than plaintiff claims. Indeed, plaintiff explicitly

argues that post-September 20, 2018 incidents “are relevant to

proving plaintiff’s damages in the form of exacerbated ADHD, PTSD,

new Depression and new Anxiety--in other words, that JC’s mental

health overall was dramatically worse as a result of the incident.”

Pl. Mot. at 37–38, ECF 323. To determine whether there was a change

in JC’s mental health, the jury should be allowed to hear about

the pre-incident “status quo.” In short, this evidence is probative

of the cause and extent of JC’s claimed psychological harm, and it

is not unfairly prejudicial. Additionally, in light of this non-

propensity purpose, and the fact that this evidence is not proposed

to prove JC’s truthfulness or untruthfulness, Rules 404(b)(1) and

608 pose no bar to its introduction.

Plaintiff alternatively argues, in the event defendants are

allowed to introduce some pre-September 20, 2018 evidence of JC’s

behavior in school, then plaintiff should be allowed to introduce

additional pre-September 20, 2018 incidents in order to “(1)

explain the ADHD-basis for [JC’s] misbehaviors and (2) to show

that Haynes and other school personnel failed to intervene and

provide the educational accommodations and supports JC desperately

needed, which led to his behavior in September, 2018.” Pl. Mot. at

29, ECF 323. To the extent plaintiff wants to introduce additional

pre-September 2018 incidents to paint a fuller picture for the

jury to compare pre- and post-incident behavior--or for another

appropriate purpose--they may do so subject to specific objections

at trial. But since plaintiff voluntarily dismissed her Monell

claim, there is no longer any claim in this case that any defendant

failed to intervene to address JC’s behavioral issues, or that

doing so could have prevented the events of September 20, 2018, so

no evidence may be introduced for that purpose.

B.

The parties agree that at least some post-September 20, 2018

incident reports about JC’s behavior should be allowed in, but

plaintiff seeks to bar the introduction of several incidents as

unfairly prejudicial pursuant to Rule 403. These incidents are as

follows:

1. 10/4/2018 - JC “was not following directions refusing

to listen to staff running around messing with other

students.”

2. 10/4/2018 - JC “was given directions and told staff

‘he didn’t have to listen to what anyone said and he

could do what he wanted.’”

3. 10/4/2018 - JC “was throwing rocks at other students

on the playground.”

4. 10/4/2018 - JC “came into the building and was trying

to throw rocks at another student in the hallway.”

5. 10/4/2018 - JC “walked away from staff and went

upstairs without permission and got into a fight with

another student.”

6. 9/23/2019 - JC “told another student that he would

shoot him and his friend because of something that had

occurred during lunch” and that “he was able to get a

gun from his brother.”

7. 1/22/2020 - JC “ran up to a student (girl) and brushed

cheek to cheek and made kissing sounds. The student felt

threatened and uncomfortable.”2

8. 2/5/2020 - JC “inappropriately touched 2 girl

students in private part areas. Most notably, in the

gluteus maximus region.”3

9. 2/26/2020 - JC “was using inappropriate loud, vulgar

language to various students,” and said “‘I want you to

suck my dick and fuck me.’”

10. 3/15/2021 - JC showed up to a Zoom class he was not

a part of.

Incident Reports at 24–33, 62, 76, 87, 95, 101–02, ECF 324-4.

Defendants argue generally that these incidents are relevant

to evaluating any change in JC’s behavior from before September

20, 2018 to after, and that defendant’s expert relied on these

incidents to form her opinion. True as that may be, an

2 Plaintiff identifies this incident as occurring on 1/23/2020,

but the “incident date” is listed as 1/22/2020 (it was delivered

to JC’s mother on 1/23/2020, see ECF 324-4 at 77).

3 Plaintiff identifies an incident from 1/21/2020 in which JC

“inappropriately touched two female students on their backside

areas.” This appears to actually have been an incident on 2/5/2020

--and presumably the same incident quoted above--which states that

JC “inappropriately touched two female students on their backside

areas.” ECF 324-4 at 85.

individualized inquiry into each of these incidents is necessary

to determine admissibility.

Defendants argue that the five incidents from October 5, 2018

are especially probative because of their proximity to the incident

on September 20, 2018. I agree that the date on which these

incidents occurred makes them more probative. The only potential

unfair prejudice I can glean from plaintiff’s arguments and an

assessment of the October 5, 2018 incidents is that the incidents

that involve throwing rocks and fighting another student could

paint JC as physically violent. It is a close call, but I conclude

that these specific incidents--the third, fourth, and fifth--have

minimal probative value in light of the other two incidents from

that day, and that their probative value is outweighed by the

potential for unfair prejudice. Defendants make no argument as to

why these three specific incidents should be presented,

particularly given that other incidents close in time to September

20, 2018 are available. The first and second incidents will be

admitted, and the third, fourth, and fifth excluded.

The incident involving JC’s comment to another student that

he would shoot him and that JC had access to a gun is also properly

excluded under Rule 403. It is a particularly serious comment and

could portray JC as dangerous or arouse prejudice in jurors. Nor

is it necessary, in light of the voluminous other evidence of

behavioral incidents, to illustrate for the jury how or whether

JC’s psychological wellbeing differed before and after September

2018. Defendants argue that this particular incident should be

admitted because their expert witness “expects to testify on JC’s

reference to obtaining a gun from his brother in connection with

his brother’s death--an event that undoubtedly had a significant

emotional impact on JC.” Def. Resp. at 11, ECF 348. But excluding

evidence of this incident does not prevent defendants’ expert from

opining about the effects of JC’s brother’s death on JC’s mental

wellbeing, so I reject that argument.

The seventh, eighth, and ninth incidents are sexual in nature.

Again, given the plethora of post-September 20, 2018 incidents

that the parties agree are admissible, I see no reason to admit

these more salacious ones, which could unfairly prejudice JC

without adding much to the overall picture of his relevant behavior

before and after the September 2018 incident. Defendants may still

argue, even without pointing to these incidents, that JC’s behavior

is simply the product of adolescence.

Finally, like defendants I do not perceive the possibility of

unfair prejudice from admitting the final incident involving

showing up uninvited to a Zoom class. Plaintiff does not explain

what makes this incident “extreme,” so that incident may be

introduced.

Plaintiff’s Motion in Limine No. 11

Plaintiff moves to bar all general reference to and testimony

about JC as an “aggressive,” “violent,” “angry,” or “bad” kid or

student. The motion is denied.

Describing JC’s behavior will be necessary for defendants to

refute that his behavior worsened after the incident, so these

terms might be admissible in certain contexts. On the other hand,

gratuitous use of these descriptors that serve no purpose other

than to inflame the jury’s feelings about JC will not be allowed.

Accordingly, it is better to leave individual objections for trial.

See United States v. Lillie, 669 F. Supp. 2d 903, 905–06 (N.D.

Ill. 2009) (“[D]enial [of a motion in limine] simply means the

court cannot determine whether the evidence in question should be

excluded outside of the trial context.” (citations omitted)).

Plaintiff’s Motion in Limine No. 12

Plaintiff moves to bar all evidence relating to JC’s grades

and attendance both before and after September 2018. The motion is

denied.

Plaintiff claims evidence of JC’s grades is irrelevant

because she does not endeavor to show that his grades suffered

following the September 2018 incident. She also contends that his

grades were no different before or after the incident, so they do

not bear on the effects of that incident. But as defendants argue,

the fact that JC’s grades did not get worse following the incident

could suggest that its effect on JC was smaller than claimed. I

will therefore allow defendants to introduce evidence of JC’s

grades, but only to the extent they can establish through

admissible expert testimony that the absence of a decline in grades

could suggest something about the severity of the September 2018

incident on JC’s psychological wellbeing.

Furthermore, though the title of plaintiff’s motion indicates

she aims to bar evidence of JC’s school attendance “both before

and after September 2018,” in her motion she concedes that

attendance after the incident is relevant to his damages for

psychological harm. If so, then evidence of JC’s attendance from

before the incident is necessary as a comparator, just as with the

behavioral incidents discussed in connection with plaintiff’s

tenth motion in limine.

Plaintiff’s Motion in Limine No. 13

Plaintiff moves to bar the conclusions of the Illinois DCFS

investigations into Haynes’ and Tyler’s conduct. The motion is

unopposed and is granted.

Plaintiff’s Motion in Limine No. 14

Plaintiff moves to bar the opinions and testimony of defense

expert witness Dr. Jane McNaught. The motion is granted in part

and denied in part.

Expert testimony is admissible if it satisfies Federal Rule

of Evidence 702 and the standards set out in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The burden of

establishing the admissibility of expert testimony lies with the

expert’s proponent. Lewis v. CITGO Petroleum Corp., 561 F.3d 698,

705 (7th Cir. 2009). The admissibility analysis has three parts:

(1) whether the witness is qualified; (2) whether her methodology

is reliable; and (3) whether her testimony will help the factfinder

understand the evidence or determine a fact in issue. Myers v.

Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010); see

Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 782 (7th Cir.

2017) (“In other words, the district court must evaluate: (1) the

proffered expert’s qualifications; (2) the reliability of the

expert’s methodology; and (3) the relevance of the expert’s

testimony.” (emphases in original)).

A.

Dr. McNaught received her Ph.D. in Counseling and Student

Personnel Psychology, with an emphasis in Counseling Psychology,

from the University of Minnesota in December 1982. McNaught CV at

80, ECF 324-5. She has worked full time since 1980 as a

psychologist, including at her own practice as a Clinical and

Forensic Licensed Psychologist since 1991. Id. at 77–78. The

forensic side of her practice focuses on the diagnosis and

treatment of both children and adults with PTSD in the context of

civil, criminal, and family law cases. Id. On the clinical side,

she provides treatment for various populations, including victims

of abuse, clients involved in high conflict divorce, and clients

experiencing depression and anxiety. Prior to starting her own

practice, she performed similar work at the Center for Child and

Behavior Therapy from 1984 to 1991, and at a different practice

from 1980 to 1983. Id. at 78. Before 1980, she held various part-

time and full-time psychology-related positions and internships,

including some consulting work. Id. at 78–79.

In connection with this case, Dr. McNaught reviewed various

records and depositions. She also conducted interviews and various

psychological tests with JC and Gaines.

B.

Plaintiff first attacks Dr. McNaught’s diagnostic opinion

that JC suffers from Complex Posttraumatic Stress Disorder

(“CPTSD”), while not currently suffering from Posttraumatic Stress

Disorder (“PTSD”). Plaintiff argues primarily that Dr. McNaught’s

opinion is unreliable, but also hints that she is not qualified to

give this opinion. See Pl. Mot. at 49, ECF 323 (“It is clear even

to a layperson that McNaught does not understand the CPTSD

diagnosis . . . .”); id. at 46 (“McNaught is not a psychiatrist

and has a mere two publications to her name, and she has no peer-

reviewed publications of any kind, including in the subspecialty

of child PTSD.”). A psychologist need not have published in order

to be qualified to testify as to psychological disorders. Nor must

one be a psychiatrist to render a mental health diagnosis. Dr.

McNaught has years of experience working with both children and

adults in a forensic capacity in civil and other legal proceedings.

Her experience focuses on traumatic events and traumatized

individuals, and it sufficiently qualifies her to render an opinion

on diagnoses of psychological trauma. See Walker v. Soo Line R.R.

Co., 208 F.3d 581, 591 (7th Cir. 2000) (“Rule 702 specifically

contemplates the admission of testimony by experts whose knowledge

is based on experience.” (citations omitted)).

Turning to reliability, which is the focus of plaintiff’s

argument for excluding this opinion, plaintiff contends that CPTSD

is not a valid diagnosis in the United States because it is not in

the fifth edition of the Diagnostic and Statistical Manual of

Mental Disorders (“DSM-5”) and not otherwise recognized in this

country’s mental health community. Plaintiff’s evidence for this

assertion includes a citation to a publication by an Australian

nonprofit specializing in posttraumatic mental health. That

publication explains that “[t]he DSM-5 workgroup on PTSD

critically evaluated the then existing literature on CPTSD and,

largely on the basis of a lack of current evidence and validity,

decided not to include CPTSD as a separate diagnosis.”4 But

4 Phoenix Australia, Australian Guidelines for the Prevention and

Treatment of Acute Stress Disorder, Posttraumatic Stress Disorder

and Complex PTSD at 2, https://www.phoenixaustralia.org/wp-

content/uploads/2022/08/Chapter-7.-CPTSD.pdf (last accessed

January 28, 2024).

plaintiff does not explain why a particular diagnosis must be

included in the DSM-5 to be valid. Dr. McNaught did not materialize

the idea of CPTSD from thin air; it is recognized in the eleventh

edition of the International Statistical Classification of

Diseases and Related Health Problems (“ICD-11”), published by the

World Health Organization (“WHO”). To be reliable, an opinion “must

be grounded in the scientific process and may not be merely a

subjective belief or unsupported conjecture.” Lewis, 561 F.3d at

705 (citations omitted). Dr. McNaught has not offered her CPTSD

diagnosis based on subjective belief or speculation. Rather, she

has used a tool--the ICD-11--published by a well-recognized

international health organization. Plaintiff is free to cross-

examine Dr. McNaught about CPTSD’s absence from the DSM-5, and may

examine its own witness, Dr. Berkowitz, about his views on the

matter.

Nor is Dr. McNaught’s CPTSD diagnosis rendered unreliable by

her opinion that JC does not currently have PTSD. Plaintiff argues

that you cannot have one without the other, and her position finds

some support in the ICD-11’s description of CPTSD, which states in

relevant part that “[a]ll diagnostic requirements for PTSD are

met.”5 But Dr. McNaught explained at her deposition the basis for

5 6B41 Complex Post Traumatic Stress Disorder, Diagnostic

Requirements, ICD-11, https://icd.who.int/browse11/l-

m/en#/http://id.who.int/icd/entity/585833559 (last visited

January 28, 2024) (hereinafter “ICD-11 CPTSD Page”).

her view that a current PTSD diagnosis is not required for a

current CPTSD diagnosis. See McNaught Dep. Tr. at 155:24–160:9,

ECF 323-7. And her position also finds support in the ICD-11’s

listed “Essential (Required) Features” of CPTSD, which instruct

that the three core features of PTSD--re-experiencing the

traumatic event after the traumatic event has occurred, deliberate

avoidance of reminders likely to produce re-experiencing of the

traumatic event(s), and persistent perceptions of heightened

current threat--must “[f]ollow[] the traumatic event” and must

“last[] for at least several weeks.” ICD-11 CPTSD Page. In other

words, it does not appear that those three core aspects of PTSD

must be present for a current CPTSD diagnosis, but only that they

must have been present at one point “following” the traumatic

event, which is what Dr. McNaught opines was the case here.6

Plaintiff also argues that Dr. McNaught’s findings do not

satisfy other criteria for a CPTSD diagnosis under the ICD-11. For

instance, one of the diagnostic requirements for CPTSD is exposure

to “extremely threatening or horrific” events, which “include, but

are not limited to, torture, concentration camps, slavery,

6 Additionally, though plaintiff’s expert opines in his rebuttal

report that JC “cannot be diagnosed with CPTSD if he is not

symptomatic with PTSD symptoms,” Berkowitz Rebuttal Report at 5,

ECF 324-6, his annotated version of the ICD-11’s CPTSD page notes

that, because PTSD is listed as an “[e]xclusion” on that page, in

Dr. Berkowitz’s view, “[o]ne cannot be diagnosed with both PTSD

and CPTSD,” id. at 5. That appears consistent with Dr. McNaught’s

understanding.

genocide campaigns and other forms of organized violence,

prolonged domestic violence, and repeated childhood sexual or

physical abuse.” ICD-11 CPTSD Page. Though none of the events cited

by Dr. McNaught as contributing to JC’s CPTSD rise anywhere near

the level of these examples, the diagnostic requirement is explicit

that qualifying events are not limited to these examples. Thus,

while questioning Dr. McNaught about how the events in JC’s life7

measure up to the horrific examples given in the ICD-11 may provide

fertile ground for cross-examination, it is not a reason to find

her opinion unreliable.

Other essential features of CPTSD that plaintiff argues are

missing from Dr. McNaught’s findings include hypervigilance,

experiencing persistent beliefs that one is “diminished,” and

impairment with relationships. As above, “hypervigilance” is only

given as an example of a behavior indicating persistent perceptions

of heightened current threat, so its absence does not appear to

rule out a CPTSD diagnosis. Additionally, Dr. McNaught recounts in

her report that JC does feel shame about the incident, including

that he is afraid students at his new school might learn of the

incident. McNaught Rep. at 12, ECF 358. And though impairment in

relationships apparently can indicate CPTSD, the ICD-11 notes that

7 Dr. McNaught’s discussion of JC’s upbringing must comport with

my rulings on other motions in this order--in particular, my ruling

on plaintiff’s seventh motion in limine.

functioning--i.e., non-impairment--may be maintained through

significant additional effort, so even assuming Dr. McNaught did

not specifically find that JC’s relationships were impaired, that

would not appear to preclude a CPTSD diagnosis. Nor is it clear

that Dr. McNaught’s opinions that JC is generally happy now and

that his symptoms are relatively minor are necessarily

inconsistent with a CPTSD diagnosis. Plaintiff’s motion to exclude

Dr. McNaught’s CPTSD opinions is denied.

C.

Plaintiff next argues that Dr. McNaught’s opinions on the

cause of JC’s mental health problems are invalid because they are

contaminated by inaccurate assumptions and a lack of cultural

knowledge. This includes Dr. McNaught’s opinion that JC’s history

of growing up without a single caretaker has contributed to his

CPTSD. In plaintiff’s view, this ignores the fact that “it is

normative in urban, African American culture for child rearing to

be communal and for grandparents and godparents to play central

and positive roles.” Pl. Mot. at 52, ECF 323.

Plaintiff’s argument goes to whether Dr. McNaught is

qualified to give her opinions. As explained above, Dr. McNaught

is clearly qualified in the diagnosis and treatment of trauma-

related disorders, including in children. Accordingly, she is

qualified to opine on the effects that the circumstances of JC’s

upbringing may have had on his mental health. To the extent that

plaintiff’s expert disagrees, he can testify on this point, and

plaintiff may explore the issue with Dr. McNaught on cross-

examination. See Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th

Cir. 2000) (“The soundness of the factual underpinnings of the

expert’s analysis and the correctness of the expert’s conclusions

based on that analysis are factual matters to be determined by the

trier of fact.” (citations omitted)).

Plaintiff also seeks to bar Dr. McNaught from opining that JC

was “aggressive,” which plaintiff argues is unduly prejudicial

because it depicts JC as having “an immutable, individual character

trait for aggression or violence” and plays into racial stereotypes

rather than speaking to relevant aspects of his mental health. Pl.

Mot. at 56, ECF 323. I have largely addressed this issue in

connection with plaintiff’s eleventh motion in limine. To the

extent that Dr. McNaught’s use of terms like “aggressive” and

description of “aggressive” acts are necessary to convey her

admissible opinions, then any objection will be overruled.

However, to the extent less inflammatory language can be used, it

should be. This aspect of the motion is denied but, as always,

plaintiff may object to specific evidence or testimony at trial.

D.

Next, plaintiff seeks exclusion of Dr. McNaught’s opinions

that are critical of Dr. Berkowitz because they were not properly

or timely disclosed. It is true that an expert report must contain

“a complete statement of all opinions the witness will express and

the basis and reasons for them,” Fed. R. Civ. P. 26(a)(2)(B)(i),

and that parties may not “cure deficient expert reports by

supplementing them with later deposition testimony,” Ciomber v.

Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008). But the

purpose of expert reports is to eliminate unfair surprise, see

Baethke v. Ne. Ill. Reg’l Commuter R.R. Corp., No. 97 C 7882, 1999

WL 1144917, at *4 (N.D. Ill. Dec. 8, 1999), and here, where many

of Dr. McNaught’s opinions fundamentally conflict with Dr.

Berkowitz’s--coupled with the fact that plaintiff had ample

opportunity to question Dr. McNaught about Dr. Berkowitz’s

opinions at her deposition, see McNaught Dep. Tr. at 58:20–24 (Dr.

McNaught testifying that she had read Dr. Berkowitz’s report and

deposition transcript)--there is no danger of unfair surprise in

allowing Dr. McNaught to testify about Dr. Berkowitz’s opinions at

trial. Accordingly, the motion is denied on this point.

E.

Plaintiff also seeks to bar Dr. McNaught’s opinions based on

psychological scales--essentially diagnostic tools--that were not

timely disclosed to plaintiff. But when presented with the

opportunity to re-depose Dr. McNaught on these scales, plaintiff’s

counsel declined, requesting only that the documents be provided

to Dr. Berkowitz to review. See ECF 349-1. Plaintiff therefore

suffered no prejudice from this oversight and this aspect of

plaintiff’s motion is denied.

F.

Finally, plaintiff requests that Dr. McNaught be barred from

testifying that (1) JC is her “client” and (2) her evaluation and

report were “independent.” Defendants agree that Dr. McNaught will

not testify that JC was her “client,” so the motion is granted to

that extent. The motion is denied as to allowing Dr. McNaught to

testify that she “independently” conducted her evaluation and

report, since that could simply convey that she arrived at her

opinions without influence from the defendants or defense counsel.

As is common practice, plaintiff may inquire as to who retained

Dr. McNaught and how much she has been paid.

Plaintiff’s Motion in Limine No. 15

Plaintiff moves to bar all evidence and argument that JC’s

parents or other family members would benefit from any verdict

award for JC. The motion is granted for the reasons given in

connection with plaintiff’s eighth motion in limine.

Plaintiff’s Motion in Limine No. 16

Plaintiff moves to bar any argument Haynes was not acting

“under color of law” because her conduct was not within the scope

of her employment. The motion is unopposed and is granted.

Plaintiff’s Motion in Limine No. 17

Plaintiff moves to bar all factual and/or legal defenses not

disclosed in defendants’ answers to the complaint, defendants’

mandatory initial discovery pilot (“MIDP”) disclosures, and/or

defendants’ answers to discovery. The motion is granted in part

and denied in part.

Plaintiff gives three examples of evidence that should be

excluded: (1) evidence of Joseph Champ’s 1994 and 2001 probate

estates; (2) DCFS mandatory reporter statutes and manuals; and (3)

argument that JC’s family caused the injuries on his body on

September 20, 2018. I dealt with the third item in discussing

plaintiff’s third motion in limine, so I offer no additional

comment on that category of evidence here. I will grant the motion

as to the second item because defendants represent that they will

not introduce this evidence unless plaintiff opens the door.

That leaves the first category of evidence, which defendants

argue was alluded to in Tyler’s deposition. The cited exchange was

as follows:

Q. Why was [Gaines] at your house? Do you know?

A. Because Chubby-Chub [Joseph Champ] and his sister got

awarded a million dollars for they mother death and she

wanted some of the money.

Q. How do you know she wanted some of the money?

A. Because she told him that she wanted some of the

money, and she said, I’m going to bust your windows out

if you don’t come out of there, and she scratched up his

car and bust the windows.

Tyler Dep. at 76:8–19, ECF 323-12. This excerpt is not enough to

have put plaintiff on notice that evidence regarding Joseph Champ’s

probate estate would be relevant to this litigation, and defendants

do not explain its relevance in their response. Accordingly, the

motion is granted as to this evidence.

Insofar as plaintiff’s motion relates to other unspecified

evidence, it is denied as too broad and too vague. Should evidence

arise at trial that plaintiff objects to on this basis, I will

assess those challenges then.

Plaintiff’s Motion in Limine No. 18

Plaintiff moves to bar appeals to jurors as taxpayers. The

motion is unopposed and is granted.

Plaintiff’s Motion in Limine No. 19

Plaintiff moves to bar any argument that Haynes is unable to

pay a judgment because the City of Chicago or the Board will

indemnify any compensatory or punitive damages awarded to

plaintiff. The motion is granted.

I need not delve into the parties’ disagreement over the legal

underpinnings of plaintiff’s argument, because defendants

represent that Haynes might not testify as to her financial

condition or ability to pay anyway. I may of course revisit this

ruling should defendants seek to introduce this evidence.

Plaintiff’s Motion in Limine No. 20

Plaintiff moves to exclude non-party witnesses from the

courtroom. The motion is granted in part and denied in part.

Defendants agree that non-party witnesses should be excluded

from the courtroom during trial, except for expert witnesses. It

is indeed generally--though not always--appropriate to allow

expert witnesses in the courtroom since, per Rule 703, such

witnesses “may base an opinion on facts or data in the case that

the expert has . . . personally observed.” Fed. R. Evid. 703.

Accordingly, the motion is granted as to lay witnesses and denied

as to expert witnesses.

II. Defendants’ Motions

Defendants’ Motion in Limine No. 1

Defendants move to exclude evidence of Tyler’s criminal

record. The motion is granted in part and denied in part.

As it relates to the specific issues decided in Tyler’s prior

criminal proceeding, discussed in connection with plaintiff’s

first motion in limine, the motion is denied.

As for other aspects of Tyler’s criminal history, given the

disposition of plaintiff’s first motion in limine, plaintiff

represents that she will “not have to introduce evidence of past

instances in which Tyler physically assaulted and battered family

and friends in order to prove her battery, assault, and IIED claims

against Tyler here.” Pl. Resp. at 8, ECF 353. Accordingly, this

motion is granted as to the remainder of Tyler’s criminal history.

Defendants’ Motion in Limine No. 2

Defendants move to exclude plaintiff’s deposition

designations and testimony from the administrative hearing against

Haynes. The motion is granted in part and denied in part.

A.

Plaintiff seeks to introduce testimony given at Haynes’

administrative hearing by several of JC’s classmates--KB, SC, KKB,

JL, and RJ--and an investigator involved in creating a report about

Haynes for Chicago Public Schools--Michael Mahone. Defendants

object that this testimony constitutes hearsay and that plaintiff

has not shown, as required by Federal Rule of Evidence 804, that

these witnesses are unavailable, Fed. R. Evid. 804(a), or that the

testimony “was given as a witness at a trial, hearing, or lawful

deposition, whether given during the current proceeding or a

different one” and “is now offered against a party who had--or, in

a civil case, whose predecessor in interest had--an opportunity

and similar motive to develop it by direct, cross-, or redirect

examination,” Fed. R. Evid. 804(b)(1).8

8 Defendants argue that the testimony also does not satisfy Federal

Rule of Civil Procedure 32(a)(4), which addresses use of

depositions in court proceedings when a witness is unavailable.

Plaintiff does not discuss or cite this rule, so I limit my

analysis to the Federal Rules of Evidence.

Plaintiff’s proposed use of the administrative hearing

testimony is tentative at this point, so I agree with her that she

need not yet establish the witness’ unavailability. A witness may

be unavailable now but would be available during trial, for which

no dates have been set, or vice versa. It would require speculation

and would otherwise be a waste of resources to settle the issue

now.

Whether the administrative hearing testimony satisfies the

requirements of Federal Rule of Evidence 804(b)(1), however, can

be decided now. The Rule 804(b)(1)(A) requirement that the

proffered testimony “was given as a witness at a trial, hearing,

or lawful deposition, whether given during the current proceeding

or a different one” is met here, and defendants do not argue

otherwise.

As for the Rule 804(b)(1)(B) requirement, plaintiff has the

better argument. That rule requires the proffered testimony to be

“now offered against a party who had--or, in a civil case, whose

predecessor in interest had--an opportunity and similar motive to

develop it by direct, cross-, or redirect examination.” Fed. R.

Evid. 804(b)(1)(B). Plaintiff represents that the administrative

hearing testimony would only be “offered against” Haynes, who had

a virtually identical opportunity and motive to develop the

testimony at her hearing. Given that the testimony would only be

offered against Haynes at trial, it makes no difference whether

Tyler, the Board, or a predecessor in interest had an opportunity

or similar motive to develop the testimony at the administrative

hearing. The testimony will not be offered against them. Thus, the

motion is denied as to the administrative hearing testimony of KB,

SC, KKB, JL, RJ, and Michael Mahone. Should plaintiff seek to

introduce this testimony at trial, she may only do so against

Haynes, and only after a showing of unavailability as to each

witness.9

B.

Defendants also seek to bar JC’s and NC’s deposition

testimony, asserting that the requirements of Rule 804 are not met

and that they should testify live. As to unavailability, defendants

emphasize that JC and NC have been available to testify about the

events underlying this case, including at their deposition and at

the state criminal trial. Plaintiff lists and discusses several

reasons why I should deem them unavailable:

Given that JC and NC are minors, that they are in fragile

mental health and highly suggestible, given the number

of times that JC and NC have already been thoroughly

examined and/or interviewed by the defense, the number

of times they have been re-traumatized through

9 Defendants also argue that the administrative hearing testimony

should be excluded because these witnesses were not disclosed in

plaintiff’s mandatory initial discovery pilot (“MIDP”)

disclosures. However, the individuals who testified at the

administrative hearing were long known to at least the Board (and

likely Haynes, who was the subject of that hearing). At a minimum,

their identities were “made known to the other parties during the

discovery process.” Fed. R. Civ. P. 26(e)(1)(A). So the motion is

denied insofar as it is premised on failure to disclose.

recounting the events, the fact that defendants already

had the opportunity to cross-examine both of them at

their depositions in this case, and the fact that, after

so many examinations and interviews, JC and NC have no

new information and nothing new to say, the Court should

find that JC and NC are unavailable [to] testify at trial

. . . .

Pl. Resp. at 40–41, ECF 353. Plaintiff does not explain which

criteria for unavailability under Rule 804(a) these considerations

satisfy. And given how frequently JC and NC have already testified

regarding the events of September 20, 2018, I conclude that they

are available to testify at this trial. Accordingly, the motion is

granted as to JC’s and NC’s deposition testimony.

Plaintiff proposes several safeguards that should be imposed

should JC testify at trial, but since defendants’ motion is aimed

only at the use of his deposition testimony, they understandably

do not weigh in on that issue. The parties should strive to come

to a consensus about what precautions would be appropriate for

trial. A good starting point might be the strictures that were put

in place for JC’s deposition, but the parties should keep in mind

that certain facts about the events of September 20, 2018 will be

considered already established by collateral estoppel. To the

extent they cannot agree, I will resolve the dispute before trial.

Defendants’ Motion in Limine No. 3

Defendants move to exclude all evidence relevant only to

plaintiff’s voluntarily dismissed Monell claim. The motion is

denied.10

As part of this motion, defendants request that the Board be

removed from the case caption and stricken from plaintiff’s

proposed jury instructions, since the only remaining claims

against the Board are based on respondeat superior and

indemnification. In support, defendants cite Martin v. City of

Chicago, in which the City was removed from the case caption and

verdict form where there were no substantive claims against it.

No. 15-cv-04576, 2017 WL 2908770, at *9 (N.D. Ill. July 7, 2017).

In Martin, however, while the plaintiff objected to that motion in

limine, he did not cite case law or develop an argument, so the

court found his objection waived. Id. And in any event, the court

observed that the plaintiff had already agreed to a jury

instruction that the defendants were being sued as individuals and

that “the City is not a party to the lawsuit.” Id. That is not the

case here. Indeed, in deciding a similar motion in a different

case, the same judge denied the City’s motion to remove it from

10 Of course, any evidence relevant only to plaintiff’s Monell

claim is inadmissible, since that claim was voluntarily dismissed.

Denial is nonetheless appropriate because, as explained below,

defendants’ motion reveals itself to aim at more than just that

evidence.

the case caption and the verdict form, concluding that “[t]he City

is still a Defendant in this case under a respondeat superior

theory for malicious prosecution as well as for [plaintiff’s]

indemnification claim.” Jones v. City of Chicago, No. 14-cv-4023,

2017 WL 413613, at *6 (N.D. Ill. Jan. 31, 2017). I find this to be

the better course, as have other courts. See Bruce v. City of

Chicago, No. 09 C 4837, 2011 WL 3471074, at *4 (N.D. Ill. July 29,

2011); Wilbon v. Plovanich, No. 12 C 1132, 2016 WL 890671, at *3

(N.D. Ill. Mar. 9, 2016).

Relatedly, defendants seek to bar plaintiff from referring to

the Board as a defendant or referencing the Board’s potential

liability under Counts IX and X in any way. Because the Board is

a party and faces potential liability under Counts IX and X, I

decline to issue the blanket ban defendants ask for. Any references

to the Board or its potential liability must, of course, be

relevant and otherwise comply with the Federal Rules of Evidence,

but that is a matter for individual objections at trial.

Defendants also argue that plaintiff should be barred from

introducing evidence or calling witnesses related solely to the

claims that have been dismissed against the Board, evidence they

say is irrelevant and/or unfairly prejudicial, confusing, and

misleading. They point to various proposed exhibits and witnesses

related to: “(1) the Board’s policies and practices; (2) the

Board’s underlying internal investigation and subsequent dismissal

proceedings related to Defendant Haynes; and (3) the Board’s

answers and responses to Plaintiffs’ written discovery.” Def. Mot.

at 3, ECF 317.

In the broadest sense, and as observed above, the propriety

of defendant’s request is obvious: plaintiff may not introduce

evidence or call witnesses related solely to dismissed claims. But

I decline at this juncture to delineate what that evidence or who

those witnesses might be. Defendants identify three broad

categories of evidence and witnesses without explaining why each

category is irrelevant to any claim. They simply cite two Seventh

Circuit cases that found that police department policies had no

bearing on the reasonableness of officers’ actions for purposes of

excessive force claims. See Est. of Biegert v. Molitor, 968 F.3d

693, 698–99 (7th Cir. 2020); Thompson v. City of Chicago, 472 F.3d

444, 454 (7th Cir. 2006). This request is too broad and vague. See

Wilbon, 2016 WL 890671, at *8 (denying motion in limine as overly

broad, making it too difficult to know whether introduction of the

evidence at issue for any purpose would be permissible or not).

In briefing on this motion in limine, the parties also discuss

a special interrogatory recommended by defendants regarding

whether Haynes was acting within the scope of her employment at

the time of her alleged wrongdoing. In their view, it is impossible

that the jury could find that Haynes acted in the scope of her

employment as to one alleged tort, but not as to the others.

Plaintiff argues that the special interrogatory would be confusing

to the jury, and that instead, the verdict form should pose the

scope-of-employment question to the jury as to each claim it

applies to. I agree that plaintiff’s proposal is less confusing,

and decline defendants’ proposed special interrogatory.

Defendants’ Motion in Limine No. 4

Defendants move to exclude video evidence of Tyler’s CBS

interview, which took place after she left a court hearing and in

which she discusses the events of September 20, 2018. The motion

is granted.

Defendants argue, among other things, that the footage should

be excluded because any probative value it has is substantially

outweighed by the risk of unfair prejudice. Given the disposition

of plaintiff’s first motion in limine--which bars Tyler from

relitigating the facts that she beat JC with one or more belts in

the Tilton school bathroom--plaintiff concedes that the probative

value of the footage is greatly diminished.

Defendants’ Motion in Limine No. 5

Defendants move to limit the scope of Dr. Steven Berkowitz’s

expert testimony. The motion is granted in part and denied in part.

The same standards as those discussed in connection with

plaintiff’s fourteenth motion in limine apply here.

A.

Dr. Berkowitz is a psychiatrist who received his M.D. in 1989

from the Hahnemann University School of Medicine before residency

and a fellowship at Yale. Berkowitz Report & CV at 29, ECF 324-3.

He has worked in a number of roles, most of which focus on issues

related to youth mental and behavioral health, and he is currently

a Professor in Psychiatry and Director of the Stress, Trauma, and

Adversity Research and Treatment (“START”) Center at the

University of Colorado. Id. He has published extensively on

childhood trauma and behavioral health. Id. at 26–28.

As part of his retention in this case, he reviewed various

reports, records, documents, and deposition transcripts. He also

met with JC and Gaines, and conducted various psychological tests.

B.

Defendants first seek to bar Dr. Berkowitz’s opinions about

the duties, obligations, and standards of schools, including his

opinions about the school’s failure to identify and accommodate

JC’s ADHD and that, had the school addressed JC’s ADHD, the events

of September 20, 2018 would not have occurred. I agree that these

opinions are irrelevant to the issues in the case and so would not

be helpful to the jury. Whether the school should have or did

address JC’s ADHD or other mental health needs would only possibly

have been relevant to plaintiff’s Monell claim, which has been

voluntarily dismissed. Even if plaintiff could show that the school

should have, but did not, address certain of JC’s needs, that would

not help the jury determine liability or damages for any of the

remaining claims.

Plaintiff argues that barring this evidence will severely

prejudice her because she will be unable to respond to defendant’s

argument that JC’s pre-September 20, 2018 behavior justified

Haynes’ actions on September 20, 2018. But as discussed in

connection with plaintiff’s tenth motion in limine, defendants

will not introduce evidence of JC’s pre-September 2018 behavior to

argue that Haynes’ actions were reasonable; they will only be

allowed to introduce this evidence as to the cause and extent of

JC’s alleged psychological harms. So the only purpose for which

plaintiff argues she should be allowed to introduce this evidence

--to rebut the argument that “JC’s behavior in kindergarten through

third grade is relevant to Haynes’ conduct on 9/20/18,” Pl. Resp.

at 79, ECF 353--is unnecessary because defendants will not so

argue.

C.

Defendants next take aim at Dr. Berkowitz’s “opinions about

access to mental health treatment services in Chicago.” Def. Mot.

at 7, ECF 18. The opinions at issue are, more specifically, that:

the available resources to treat PTSD in children are extremely

limited in the public sector and hard to obtain in Chicago; it is

difficult to find a therapy provider that will accept Medicaid;

and it is unlikely that JC will get effective treatment for his

PTSD because of this lack of resources.

Defendants first argue that these opinions are irrelevant,

since they do not relate directly to what occurred on September

20, 2018, and whether JC was injured as a result. But these

opinions are relevant to why, in Dr. Berkowitz’s opinion, JC will

need to seek treatment at private, rather than public, facilities.

Since private sector services are more expensive than public sector

services, this will help explain how Dr. Berkowitz arrived at his

treatment cost estimates, which assume treatment in the private

sector. In other words, this information is relevant to damages.

Defendants also argue that Dr. Berkowitz is not qualified to

opine on access to mental health treatment services in Chicago,

since he is not licensed in Illinois and does not practice in

Chicago. But there is no requirement that Dr. Berkowitz have direct

experience practicing in Chicago to opine on that topic. Here, Dr.

Berkowitz has based his opinion on his experience as a professional

psychiatrist with knowledge of accessing mental health treatment,

conversations with Chicago colleagues who treat trauma disorders

in the private sector, and review of the deposition of Sue Patton

--someone who treated JC. Berkowitz Dep. I at 175:7–12, 217:13–

21, ECF 333. It is reasonable that a psychiatrist would rely on

the reports of his colleagues practicing in a certain location, as

well as his own years of experience, to form an opinion on the

availability or cost of psychiatric services in that location.

Defendants are of course free explore Dr. Berkowitz’s bases for

these opinions on cross-examination, should he testify to them at

trial.

D.

Defendants also challenge Dr. Berkowitz’s opinions: (1) that

JC’s statement that “the devil takes over” when he has to talk

about the September 20, 2018 incident is a phrase commonly used by

religious individuals who want to express something bad happening,

and (2) that the drop in JC’s church attendance following the

incident is a trauma response. As to the first opinion, plaintiff

has not carried her burden to establish that Dr. Berkowitz has

specialized knowledge, skill, experience, or education to opine on

the meaning of JC’s use of the phrase “when the devil takes over.”

The meaning of a phrase to religious people is not a matter of

psychiatry. Additionally, it is not a phrase that a layperson on

the jury would need an expert’s help to understand; surely most

English speakers would know that the devil taking over is a bad

thing. See United States v. Christian, 673 F.3d 702, 710 (7th Cir.

2012) (“[A] witness should not be allowed to put an ‘expert gloss’

on a conclusion that the jurors should draw themselves.” (citation

omitted)). The motion is granted as to this opinion.

It is squarely in Dr. Berkowitz’s wheelhouse, however, to

opine on whether observed behavioral changes may be in response to

a traumatic event. And it will inform the jury about the effects

of the September 20, 2018 incident to hear evidence about the

decline in JC’s church attendance following the incident.

Accordingly, the motion is denied as to this opinion.

E.

In the final section of their motion, defendants list

additional statements in Dr. Berkowitz’s report and depositions

that, in their view, are unreliable, speculative, and irrelevant.

First, they seek to exclude Dr. Berkowitz’s opinions about JC’s

PTSD because, at his second deposition, Dr. Berkowitz testified

that he did not know what PTSD symptoms JC currently exhibited,

when his symptoms would resolve, or the likelihood of recovery.

See Berkowitz Dep. II Tr. at 15:22–16:1, 24:5–8, 25:7–27:7, ECF

335. Uncertainty on these specific questions is not disqualifying,

however. The second deposition took place months after his first

deposition and his report, and was primarily intended to discuss

his rebuttal report, so it is unsurprising that he did not testify

about JC’s current symptoms. Dr. Berkowitz relayed in both his

report and his first deposition his opinion on the PTSD symptoms

JC experienced. See, e.g., Berkowitz Rep. at 11–12, 23, ECF 324–

3; Berkowitz Dep. I Tr. at 56:4–23, 72:5–22, 111:4–113:1, ECF 333.

Similarly, while Dr. Berkowitz expressed some uncertainty at the

second deposition as to the probability that JC will recover from

his PTSD, he has opined as to his best estimates. See Berkowitz

Rep. at 24, ECF 324-3; see also Berkowitz Dep. II Tr. at 25:15–

17, ECF 335 (“I will say that since he has not been treated it’s

unlikely that they will resolve any time soon.”).

Defendants also attack Dr. Berkowitz’s diagnostic opinions on

the grounds that he failed to consider other potentially traumatic

events in JC’s life, specifically mentioning the death of JC’s

brother and a housefire for which JC was present. But Dr. Berkowitz

actually did ask JC about both of these events. Berkowitz Dep. II

Tr. at 16:2–17:8, ECF 335 (testifying that JC’s brother’s death

may have been a traumatic event and that he spoke with JC about

it); id. at 18:9–20:16 (testifying that, in his opinion, the

housefire was not a traumatic event for JC because JC was not

afraid for his life). The motion is therefore denied as to this

opinion.11

Defendants also seek to bar Dr. Berkowitz’s opinion that JC’s

ADHD was exacerbated by the incident because, they argue, (1) ADHD

is something that you are born with and (2) Dr. Berkowitz did not

perform DSM-5 testing for exacerbation of ADHD. The parties dispute

whether there is even such a thing as DSM-5 testing for ADHD

exacerbation. But in any event, Dr. Berkowitz’s opinion is not

speculative because he based it on review of JC’s medical and

11 For the same reasons, defendant’s request to exclude Dr.

Berkowitz’s opinion that JC’s depression and anxiety are linked to

his PTSD on the basis that Dr. Berkowitz failed to examine other

traumatic events in JC’s life is denied.

school records, as well as the deposition taken in this case of

Tilton school psychologist Brian Apollo, who testified that JC’s

post-incident behavior was worse than his pre-incident behavior.

See Berkowitz Report at 3–4, ECF 324-3 (identifying materials Dr.

Berkowitz reviewed in coming to his opinions); id. at 8–9

(discussing Apollo’s deposition and explaining that Apollo

“reported that [JC]’s behavioral difficulties escalated after the

beating, which was no doubt due to his PTSD interacting with his

pre-existing ADHD”). That renders this opinion sufficiently

reliable.

Defendants next request that I exclude Dr. Berkowitz’s

opinion that medication would have been helpful in treating JC’s

ADHD and that, had JC been treated, the incident would not have

occurred. The motion is granted as to this opinion for the same

reasons given in connection with excluding Dr. Berkowitz’s opinion

that the school could have addressed JC’s needs to avoid the

incident.

I also grant the motion with respect to Dr. Berkowitz’s

opinions about cultural norms within the African American

community, but only to the extent he seeks to offer opinions

unmoored from his diagnoses. Though Dr. Berkowitz has worked

extensively with African American patients, it has been in the

realm of psychiatry, not sociology. Nor do I understand general

opinions about cultural norms to be relevant to deciding the facts

in issue here. That said, as I found in connection with Dr.

McNaught’s proposed testimony about the effects--or lack thereof

--of how JC was raised, Dr. Berkowitz is qualified to testify on

the effects of multiple caregivers on JC’s psychiatric conditions,

and such testimony would be relevant.

Defendants also seek to bar Dr. Berkowitz’s opinions about

JC’s potential for future suicide, substance use disorder, major

depressive disorder, and major anxiety disorder as purely

speculative or irrelevant. The opinion that PTSD and ADHD diagnoses

increase the risk of future suicide or substance abuse is relevant

to the issue of damages. If the jury finds that defendants caused

or exacerbated JC’s mental health problems, then they may consider

the possible effects of those problems when considering how to

compensate him. Furthermore, the opinions are not speculative

because an understanding of a correlation between PTSD and

suicidality is well within the realm of a child psychiatrist based

on his professional education, training, and experience, and he

backs the opinions up with published research. The motion is denied

as to these opinions.

Finally, defendants move to exclude Dr. Berkowitz’s opinions

that JC suffers from mild depression and anxiety because he

testified at his first deposition that no other practitioner had

made those diagnoses. But the mere fact that no other practitioner

diagnosed JC with these conditions does not mean that Dr.

Berkowitz’s diagnosis is “purely speculative.” Dr. Berkowitz based

these diagnoses on his expert psychological evaluation, so they

are sufficiently reliable. The motion is denied as to these

opinions.

Defendants’ Motion in Limine No. 6

Defendants move to bar all evidence pertaining to any alleged

violation of Tilton Elementary School policy related to Tyler being

an “unauthorized” individual or obtaining a visitor pass. The

motion is denied.

The parties dispute some of the underlying facts, such as

whether Tyler ever obtained a visitor pass or whether Haynes

instructed the school security guard to send Tyler to her classroom

without a visitor pass, but I cannot resolve those factual disputes

here.

Policies like this are presumptively irrelevant in

determining whether a federal constitutional violation has

occurred. See Thompson, 472 F.3d at 454–55. But there are instances

in which such evidence may be introduced for these purposes. For

example, the Seventh Circuit has emphasized that the evidence is

more likely admissible in a criminal case to comply with the

constitutional demands of those cases. See United States v. Brown,

871 F.3d 532, 538 (7th Cir. 2017). Policy evidence might also be

admissible even in the civil context in factually complex cases

where explanation regarding policies or procedures can help

jurors’ understanding of key issues. See id. Those circumstances

are not present here, however, so this evidence may not be

introduced in connection with the merits of plaintiff’s § 1983

claims.

Nonetheless, even in cases dealing with federal

constitutional claims, “such materials are not barred for all

purposes and may be admissible if relevant to other issues,

including state law claims and claims for punitive damages.”

Brooks, 2015 WL 3545386, at *5 (citing Scott v. City of Chicago,

No. 07 C 3684, 2010 WL 3034188, at *1–2 (N.D. Ill. July 27, 2010)).

Here, the evidence is relevant at least as to Haynes’ intent on

several state law claims--including the aiding and abetting and

conspiracy claims--as well as the issue of punitive damages. See

United States v. Proano, 912 F.3d 431, 438–40 (7th Cir. 2019)

(concluding that policies can be relevant to intent); Hudson v.

City of Chicago, 881 N.E.2d 430, 456 (Ill. App. Ct. 2007) (holding

that violation of internal policy or rule “can constitute some

evidence of willful and wanton conduct”). Policies regarding who

counts as an “authorized” individual and requiring such

individuals to obtain visitor passes could act as barriers to

unauthorized individuals entering the school. Efforts undertaken

by Haynes to circumvent those policies are relevant to her state

of mind.

I am not persuaded that allowing the introduction of this

evidence as to plaintiff’s state law claims and for the issue of

punitive damages, but not as to the merits of her § 1983 claims,

will lead to jury confusion or unfair prejudice. As decided by the

courts in Brooks and Scott, an appropriate limiting instruction

may be given to mitigate those concerns.

Defendants’ Motion in Limine No. 7

Defendants move to bar all evidence pertaining to the

dismissal charges, pre-suspension hearing, suspension, and

dismissal hearing against Haynes, other than for purposes of

impeachment. The motion is denied.

Defendants argue that this evidence is categorically barred

by Rule 407; cannot be considered to prove any constitutional

violation against Haynes; is irrelevant; and is unfairly

prejudicial, confusing, and misleading.

Rule 407 bars evidence of subsequent remedial measures to

prove, as relevant here, negligence or culpable conduct. Fed. R.

Evid. 407. By the terms of this rule, plaintiff will not be allowed

to introduce evidence about disciplinary actions taken against

Haynes solely for the purpose of showing culpability. But because

defendants have not sufficiently identified the specific evidence

for which this is the only purpose, the motion is denied. See Betts

v. City of Chicago, 784 F. Supp. 2d 1020, 1023 (N.D. Ill. 2011)

(appropriate to exclude evidence in limine “only when the movant

shows that the evidence is inadmissible on all potential grounds”

(citation and internal quotation marks omitted)). Without

identifying the evidence, plaintiff cannot explain for what other

purposes the targeted evidence might be relevant. Defendants may

object on Rule 407 grounds upon introduction of evidence of

remedial measures they believe go only to prohibited purposes.

Similarly, defendants paint only in broad brush strokes in

asserting that “[a]ny evidence related to the dismissal charges,

pre-suspension hearing, suspension, or dismissal hearing involving

Haynes” is irrelevant and should therefore be excluded. Def. Mot.

at 7, ECF 320. So too in their argument to exclude this evidence

under Rule 403. Id. at 9. Such evidence could range from the

charging document itself to evidence introduced at the hearing.

Because defendants’ Rule 402 and Rule 403 arguments are simply too

broad and vague, the motion is denied as to this evidence.

Defendants get more specific in arguing that testimony from

the dismissal hearing should be excluded as inadmissible hearsay.

But they fail to develop their argument that no exceptions apply.

Indeed, some of the testimony given at the hearing could

conceivably be introduced as a prior inconsistent statement, Fed.

R. Evid. 801(d)(1)(A), or as an opposing party’s statement, Fed.

R. Evid. 801(d)(2). Thus, the motion is denied as to this evidence.

Defendants’ Motion in Limine No. 8

Defendants move for judgment on the pleadings as to

plaintiff’s failure to intervene and aiding and abetting claims,

and to bar any evidence related to unpled claims. The motion is

granted in part and denied in part.

Plaintiff argues that, to the extent this motion is brought

under Federal Rule of Civil Procedure 12(c) for judgment on the

pleadings, it is improper and untimely. Generally, a Rule 12(c)

motion “may be brought after the dispositive motions deadline if

the moving party complies with the requirements of Rule 16(b) and

if it will not delay trial.” Riggins v. Walter, 279 F.3d 422, 427–

28 (7th Cir. 1995) (emphasis in original) (citation omitted).12

Here, no trial has been set and this motion can be resolved along

with the motions in limine, so allowing the motion will not delay

trial. Furthermore, defendants premise their motion, at least in

part, on recently filed pretrial materials, including plaintiff’s

proposed jury instructions. In view of this, and because addressing

12 Defendants argue that no dispositive motion deadline was ever

set. However, Judge Feinerman stated in a minute entry on December

13, 2022 that “[g]iven the doctor’s suggestion that Defendant Tyler

will be able to sit for a deposition by early January, the

deposition motion deadline is 2/17/2023.” ECF 236. In light of the

joint status report to which that minute entry responds, see ECF

235, it is clear that “deposition motion deadline” was a typo, and

what was meant was “dispositive motion deadline.” Nonetheless,

whether a dispositive motion deadline was set is immaterial because

defendants meet the standard for filing a Rule 12(c) motion after

that deadline.

the motion may streamline trial, there is good cause under Rule

16(b) for allowing the motion even after the dispositive motion

deadline.

Defendants request judgment on the pleadings as to

plaintiff’s “failure to intervene” claim against Haynes. This

“claim” is characterized in the amended complaint as a claim “[i]n

addition or in the alternative,” under Count II, which more broadly

pleads an excessive force claim against Haynes under 42 U.S.C.

§ 1983. A “failure to intervene” claim requires that one person

fails to intervene while another person is committing a

constitutional violation. See Gil v. City of Milwaukee, 850 F.3d

335, 342 (7th Cir. 2017). Here, since there is no plausible

allegation that Tyler committed a constitutional violation--only

that she committed state law torts--at no point did Haynes fail to

intervene to prevent the commission of a constitutional violation

by another. Plaintiff does not respond to this argument, stating

simply that she is evaluating whether she should seek leave to

amend to cure any defect in her failure to intervene claim.

Accordingly, I grant the motion for judgment on the pleadings as

to the failure to intervene claim in Count II, though the remainder

of Count II stands.

Defendants next argue that judgment should be granted on

plaintiff’s “aiding and abetting” claim. Defendants are right that

“aiding and abetting” is not a standalone tort, see E. Trading Co.

v. Refco, Inc., 229 F.3d 617, 623 (7th Cir. 2000) (“[T]here is no

tort of aiding and abetting.” (citations omitted)), but aiding and

abetting “is a theory for holding the person who aids and abets

liable for the tort itself,” Hefferman v. Bass, 467 F.3d 596, 601

(7th Cir. 2006). Here, though aiding and abetting is pled as a

separate count, that count incorporates the allegations in the

counts for the state-law tort claims against Haynes and Tyler in

Counts IV through VI. See Am. Compl. ¶ 175, ECF 23 (incorporating

the paragraphs for the assault, battery, and IIED counts). The

amended complaint thus provides adequate notice under Rule 8 of

plaintiff’s claim that Haynes aided and abetted Tyler in the

commission of the alleged torts. The motion is denied as to

plaintiff’s aiding and abetting claim.

Next, defendants request that I “bar any evidence related to

unpled claims.” Def. Mot. at 5, ECF 321. Specifically, defendants

identify a “substantive due process state-created danger claim”

against Haynes and an excessive force claim against Tyler that are

not pled in the amended complaint, but are asserted by plaintiff

in the joint pretrial order. Id. at 7. As for the excessive force

claim against Tyler, defendants do not identify where in the

pretrial order plaintiff makes this claim. And in any event,

plaintiff represents that she is not pursuing such a claim, so I

will deny the motion as to that purported claim. Defendants also

state that “while Plaintiff’s amended complaint alleges an

excessive force claim against Kristen Haynes, nowhere in the

complaint do the words ‘seizure’ or ‘seized’ appear in relation to

the allegations against Haynes.” Id. at 7–8. Because defendants do

not develop this argument or cite any authority, it is waived. See

Smith v. Ne. Ill. Univ., 388 F.3d 559, 569 (7th Cir. 2004)

(undeveloped arguments are waived). Thus, the motion is denied as

to the excessive force claim against Haynes.

As for the “substantive due process state-created danger

claim,” plaintiff did, in fact, plead that claim: it is her § 1983

substantive due process claim found at Count III. A “state-created

danger” claim is a type of substantive due process claim, and

defendants do not dispute that Count III pleads a substantive due

process claim. Def. Mot. at 8, ECF 321. That the count does not

bear the more specific label “state-created danger” is not itself

fatal since “a complaint need not plead legal theories.” See Alioto

v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (citations

omitted).

A state-created danger claim requires that a plaintiff plead

(1) the state, by its affirmative acts, created or increased a

danger to plaintiff; (2) defendant’s failure to protect the

plaintiff proximately caused the injuries; and (3) defendant’s

failure to protect the plaintiff shocks the conscience. King v. E.

St. Louis Sch. Dist. 189, 496 F.3d 812, 817–18 (7th Cir. 2007).

The amended complaint sufficiently states this claim because it

alleges or allows me to reasonably infer that Haynes, acting under

color of state law, created a danger by inviting Tyler to the

school to inflict physical harm on JC; that Haynes’ failure to

protect JC from this danger proximately caused his injuries because

it was foreseeable that JC would be injured by Haynes’ acts in

inviting Tyler to the school to physically punish JC; and that

Haynes’ conduct “shocks the conscience.”13 As to proximate cause

specifically, the danger of sending JC into the school bathroom

alone with Tyler after Haynes gave her instruction to corporally

punish JC, as alleged, is “familiar and specific.” Buchanan-Moore

v. County of Milwaukee, 570 F.3d 824, 828 (7th Cir. 2009). And

under these circumstances, JC was certainly within a definable

group of people to which Haynes’ conduct created a foreseeable

risk. Id.

Defendants also contend that state-created danger claims are

categorically inappropriate “for conduct within the school walls.”

Def. Mot. at 11, ECF 321. But defendants’ cited case, J.O. v. Alton

Community Unit School District 11, 909 F.2d 267, 272 (7th Cir.

1990), considered only the “special relationship” exception to the

general rule announced in DeShaney v. Winnebago County Department

of Social Services, 489 U.S. 189 (1989), that the state has no

13 Defendants do not argue specifically that the “shocks the

conscience” element is not sufficiently alleged, nor do they

describe what is required to adequately allege this element.

duty to protect individuals from harm by private actors. But

plaintiff does not invoke the “special relationship” exception--

indeed, she acknowledges that theory is unavailable to her in light

of Alton Community--and instead pursues the “state-created danger”

exception to DeShaney. Accordingly, defendants’ motion is denied

as to plaintiff’s substantive due process state-created danger

claim.

Defendants’ Motion in Limine No. 9

Defendants finally move for a 15-hour time limit to present

each party’s evidence. The motion is denied.

Defendants argue that this time limit is appropriate because

the criminal trial of Haynes and Tyler took only four days, and

the incident precipitating this suit took no more than 20 minutes.

True as that may be, the criminal trial did not comprise as many

legal issues as this case and, of critical importance, did not

have a damages component. And the length of time it took for the

beating to occur is not dispositive, or even necessarily

indicative, of how long trial should take. To the extent any party

attempts to introduce cumulative evidence that will unnecessarily

lengthen the trial, other parties may object.

ENTER ORDER:

Elaine E. Bucklo

United States District Judge

Dated: February 15, 2024

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