The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
NICHOLAS A. FETTY, ET UX. CIVIL ACTION NO.
VERSUS 18-945-SDD-RLB
THE CITY OF BATON ROUGE, CHIEF
MURPHY J. PAUL, JR., CHIEF OF POLICE,
BATON ROUGE CITY POLICE; SECRETARY
JAMES M. LEBLANC, LA DEPT. OF PUBLIC
SAFETY AND CORRECTIONS; COL. KEVIN W.
REEVES, SUPERINTENDENT, LA STATE POLICE;
OFFICER BRIAN STRONG, BRPD; SEVEN (7) YET
TO BE IDENTIFIED LA STATE TROOPERS
RULING
Before the Court are two pretrial Motions in Limine; a Motion in Limine filed by the
City of Baton Rouge, Joel Pattison, Murphy J. Paul, Jr., Brian Strong, Brian Watson:1 and,
a Motion in Limine filed by the Plaintiffs.2 Oppositions have been filed.3
For the following reason the Motions are denied in part and granted in part.
I. Defendants Pattison and Watson Motion in Limine4
A. Motion to Exclude Witnesses identified by the Plaintiff for the first time in the
Pretrial Order5
In the Pretrial Order, Plaintiff identified the following as “will call” witnesses.
1 Rec. Doc. 100. Defendants City of Baton, Murphy Paul, Jr. and Brian Strong have been previously
dismissed with prejudice. Rec. Doc. 87. Hence, the Court treats this as a Motion by Defendants Joel
Pattison and Brian Watson.
2 Rec. Doc. 102
3 Rec. Doc. Nos. 107, 108, 109.
4 Rec. Doc. 100, Plaintiff’s Opposition at Rec Doc. 108.
5 Rec. Doc. 98.
(4) Emergency Room Treating Physician, Our Lady of the Lake Regional Medical Center
(15) Luke Polasik, East Baton Rouge Parish Emergency Medical Services
(16) East Baton Rouge Parish Prison Medical Attendant, East Baton Rouge Prison
Witnesses #4 and 16 shall be excluded for the failure to identify the proposed
witnesses by name and for the failure to identify and/or disclose the witness in discovery
and in Rule 26 disclosures.
Witness #15, Luke Polasik, shall be excluded for the failure to identify the proposed
witness to identify and/or disclose the witness in discovery and in Rule 26 disclosures.
B. Medical Records
In the Pretrial Order, Plaintiffs listed various medical records and reports - Exhibits
17, 18, 19, and 25.6 Medical records and reports were specifically requested by movants
in discovery.7
Plaintiffs concede that they produced no medical records. Rather, in response to
Movant’s Request for Productions, Plaintiffs stated that they were “currently not in
possession of any medical report or medical record prepared in connection with any
treatment” and committed to “supplement these responses upon receipt of any
documents that would be responsive hereto.”8
6 Exhibit 17: Complete medical records, including but not limited to any x-rays or other diagnostic films,
detailed billing and narrative reports, concerning plaintiff Nicholas A. Fetty, or excerpts thereof from Our
Lady of the Lake Regional Medical Center, Emergency Room.
Exhibit 18: Complete medical records, including but not limited to any x-rays or other diagnostic films,
detailed billing and narrative reports, concerning plaintiff Nicholas A. Fetty, or excerpts thereof from the
East Baton Rouge Parish Prison Medical Facility.
Exhibit 19: Complete medical and/or psychological records, including but not limited to detailed billing and
narrative reports, concerning plaintiff Nicholas A. Fetty, or excerpts thereof from Christine Angelloz, Ph.D.;
Exhibit 25: East Baton Rouge Parish EMS, Patient Care Record, of Emergency Medical Technician Luke
Polasik dated November 2, 2017. Rec. Doc. 98.
7 Rec. Doc. 100-1.
8 Rec. Doc. 108-1.
As an excuse for not producing the medical records, Plaintiffs submit that the
movants failed to provide authorizations for the release of medical records.
The Plaintiffs have the burden of proof. Plaintiffs were obliged under FRCP Rule
26 to produce “all documents . . . in [their] possession, custody, or control [that they] may
use to support [their] claims.”9 Plaintiffs were obliged to produce the medical records that
substantiate their personal and psychological injury claims. They may not rest on the
laurels behind an excuse that the Defendants failed to provide them with a medical
release. The Motion in Limine as to the unproduced medical records and bills is
GRANTED, and Plaintiffs’ Exhibits 17, 18, 19 and 25 are EXCLUDED.
3. Dr. Tiffany Simon and Dr. Christine Angelloz
The deadline to propound discovery and to disclose experts was January 13,
2020.10 The deadline to depose experts was June 9, 2020.11 Dr. Tiffany Simon was
identified in Response to Interrogatories Number(s) 11 and 14 as having treated Plaintiff,
Emily Fetty. However, no medical records were produced. Furthermore, Emily Fetty’s
loss of consortium is a state law claim which has been dismissed as abandoned.12
Accordingly, the Defendants Motion in Limine to exclude Dr. Tiffany Simon is GRANTED.
Dr. Christine Angelloz was not identified by the Plaintiffs in discovery, but she was
timely designated as an “expert” by the Plaintiffs, and Plaintiffs produced a “preliminary
report” from Dr. Angelloz on March 10, 2020.13 The medical records have been previously
excluded for failure to comply with discovery. Dr. Angelloz may testify but shall be limited
9 FRCP Rule 26(a)(1)(A)(ii).
10 Rec. Doc. 42.
11 Rec. Doc. 45.
12 Rec. Doc. 97.
13 Rec. Doc. 108-1.
to the opinions and the scope of her preliminary report. The Defendants’ Motion in Limine
to exclude Dr. Angelloz is DENIED; however, her testimony shall be limited to the scope
of and the opinions stated in her preliminary report.
4. Testimony of Haldon “Max” Fetty and Cody Harrington
BRPD Defendants move to exclude testimony from Max Fetty and Cody Harington
on the grounds of relevance. The Motion in Limine is DENIED, without prejudice to urging
objections at trial. Hearsay and relevance objections as to the handwritten recorded
statements of these two witnesses are reserved to the time of trial.
II. Plaintiffs’ Motion in Limine14
1. Other Pending Litigation by Plaintiff
Plaintiff moves to exclude reference to and evidence related to claims by the
Plaintiff, Nicholas Fetty, in litigation encaptioned, “Nicholas A. Fetty, et al. v.The Louisiana
State Board of Private Security Examiners, et al.,” bearing Docket Number 3:18-cv-517,
United States District Court for the Middle District of Louisiana. The Defendants
concede15 that they will not seek to offer evidence of this suit or the underlying facts.
Accordingly, the Motion in Limine to exclude evidence of Civil Action 3:18 cv 5167 is
GRANTED as unopposed.
2. Nicholas Fetty’s Arrest and the Arrest Warrant
Plaintiff moves to exclude as improper character evidence under FRE 404,
evidence of the arrest warrant issued by Judge Moore of the 19the JDC on October 31,
2017, the Affidavit of probable cause also dated October 31, 2017, and evidence of the
events of October 14, 2017, which are articulated in the probable cause Affidavit.
14 Rec. Doc. 102.
15 Rec. Docs. 107 and 109.
Defendants counter that the events that gave rise to the arrest warrant are probative of
“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident” and therefore admissible under FRE 404(b)(2). The City of Baton
Rouge Defendants submit that the factual basis which supports the charges of Simple
Battery and Felony False Arrest with a Dangerous Weapon “is directly relevant to the
defenses in this suit, and in particular, whether the officers acted reasonably with regards
to Plaintiffs’ excessive force claim.”16
The City of Baton Rouge Defendants argue that, “[w]hether the amount of force
used is clearly ‘excessive’ and ‘unreasonable’ depends on ‘the facts and circumstances
of each particular case.’”17 “Factors to consider include the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.”18 “The
‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”19
Defendants argue that the facts that underly the arrest warrant is “information [that] should
be considered when determining whether the officers’ actions in arresting Fetty were
objectively reasonable.”20
Similarly, Defendants LeBlanc and Reeves argue that, “the Felony Task Unit’s
knowledge that the arrest warrant was issued for simple battery and false imprisonment
while armed with a dangerous weapon is relevant to the objective reasonableness
16 Rec. Doc. 109, p. 4.
17 Id. (quoting Brown v. Lynch, 524 F. App'x 69, 79 (5th Cir. 2013)(internal quotation marks omitted)).
18 Id. (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)(internal quotation marks omitted)).
19 Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)(internal quotation marks omitted)).
20 Id. at p. 6.
standard.”21
The Court observes that FRE 404(b) is a rule of exclusion. By its express terms
“[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance
with the character.” Other acts evidence may be admissible for another purpose such as
to proving the actor’s “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Defendants purport to offer Fetty’s alleged prior
conduct as probative of the arresting officer’s reasonableness. The Supreme Court has
held that, under certain circumstances, evidence of this type of conduct is admissible to
demonstrate the objective reasonableness of the force officers used in making an arrest,
under the totality of the circumstances. Indeed, in Graham v. Connor, the United States
Supreme Court listed factors to help determine whether a police officer's use of force was
reasonable under the Fourth Amendment:
Determining whether the force used to effect a particular seizure is
“reasonable” under the Fourth Amendment requires a careful balancing of
the nature and quality of the intrusion on the individual's Fourth Amendment
interests against the countervailing governmental interests at stake. Our
Fourth Amendment jurisprudence has long recognized that the right to
make an arrest or investigatory stop necessarily carries with it the right to
use some degree of physical coercion or threat thereof to effect it. Because
[t]he test of reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application, however, its proper application
requires careful attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by
flight.22
Accordingly, the Court will defer the Motion in Limine to exclude evidence of the
21 Rec. Doc. 107, p. 4 (emphasis omitted).
22 Graham v. Connor, 490 U.S. 386, 395 (1989).
alleged conduct of October 14, 2017 and the Affidavit of probable cause and arrest
warrant of October 31, 2017 to the time of trial. All objections are reserved and may be
urged at the time of trial.
Signed in Baton Rouge, Louisiana the 5th day of May, 2021.
S
CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA