Mojarrad v. Edwards

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO. 5:20-CV-396-FL

SIAVASH L. MOJARRAD as administrator )

of The Estate of Soheil Antonio Mojarrad, )

)

Plaintiff, )

)

v. )

) ORDER

WILLIAM BRETT EDWARDS in his )

individual capacity, )

)

Defendant. )

Four motions in limine dot the record of this case set for trial to commence June 12, 2023.

In its initial motion, plaintiff urges the jury should not hear about 17 listed topics. (DE 168).

Defendant’s corresponding motion identifies 25 topics about which the jury should not hear. (DE

170). In its later filed motion, plaintiff adds topics 18 and 19 to plaintiff’s list, seeking to preclude

police officer uniforms from being worn at trial and testimony of or relating to Tiare Powell be

excluded. (DE 217). Defendant raises in his second motion in limine two additional areas of

concern, that the jury not hear about police misconduct unrelated to events of April 20, 2019, and

Haleigh McGrath, Shaiyan Mojarrad, and Brittany Dunphy be excluded as witnesses. (DE 222).

These motions variously filed between January 23, 2023, and February 21, 2023, where final

pretrial conference was undertaken February 6, 2023, come before the court also with benefit of

the parties’ amended proposed pretrial order, filed March 3, 2023, (DE 224), and discussion

concerning at Rule 16, Fed.R.Civ.Pro., conference following with the parties March 6, 2023.1

1 On February 21, 2023, the court allowed plaintiff’s consent motion to continue trial, and set the matter for

trial to commence June 12, 2023, which date marked the earliest two-week trial block next available.

COURT’S DISCUSSION

The court focuses here on what the parties identified in their amended proposed pretrial

order as remaining to be decided pertinent to the above-listed motions. The court adopts the

parties’ topic numbers in its address below.

A. Plaintiff’s Topic No. 1 (Mental and Physical Health Diagnoses and Treatment of

Soheil Mojarrad (“Soheil”)) (DE 168)

Plaintiff moves to exclude any reference to the mental and physical health diagnoses or

treatment of plaintiff’s decedent, Soheil, including through presentation of medical records. The

parties summarize their agreement as follows:

The parties agree that the Court ruled at the Final Pretrial Conference that this

Motion is denied in part and that the Court will permit Defendant Edwards to

impeach a testifying witness with information, including records, that relates to

Soheil’s mental or physical health as it pertains to that witness’s personal

relationship with Soheil. Pretrial Hearing Trans. 76:12-20. The parties also agree

that the Court requested that Plaintiff, without waiving his objections, provide the

Court proposed limiting instructions to be read if this evidence is presented at trial.

Plaintiff provided these instructions to the Court on February 10, 2023. (Dkt. Nos.

207, 207-1.)

(Amended Pretrial Order (DE 224) at I(A)). The parties request clarification regarding whether

defendant may also ask direct questions to witnesses concerning their relationship with Soheil.

Plaintiff seeks damages under North Carolina’s wrongful death statute, which allows for

recovery of the following:

(1) Expenses for care, treatment and hospitalization incident to the injury resulting

in death;

(2) Compensation for pain and suffering of the decedent;

(3) The reasonable funeral expenses of the decedent;

(4) The present monetary value of the decedent to the persons entitled to receive

the damages recovered, including but not limited to compensation for the loss of

the reasonably expected;

a. Net income of the decedent,

b. Services, protection, care and assistance of the decedent, whether

voluntary or obligatory, to the persons entitled to the damages recovered,

c. Society, companionship, comfort, guidance, kindly offices and advice of

the decedent to the persons entitled to the damages recovered;

(5) Such punitive damages as the decedent could have recovered pursuant to

Chapter 1D of the General Statutes had the decedent survived, and punitive

damages for wrongfully causing the death of the decedent through malice or willful

or wanton conduct, as defined in G.S. 1D-5;

(6) Nominal damages when the jury so finds.

N.C. Gen. Stat. § 28A-18-2; see, e.g., Di Donato v. Wortman, 320 N.C. 423, 431 (N.C. 1987).

Soheil’s relationship with his next-of-kin is relevant to the value, and loss thereof, of his

“[s]ervices, protection, care and assistance” as well as his “[s]ociety, companionship, comfort,

guidance, kindly offices and advice.” N.C. Gen. Stat. § 28A-18-2. Thus, as a general matter,

defendant may inquire as to those relationships.

Such inquiry, however, properly is limited by Federal Rules of Evidence, including 403

and 404(b). On this basis, the court held at February 6, 2023, pretrial conference that defendant

may only introduce evidence of Soheil’s mental and physical health diagnoses and treatment for

the purpose of impeachment by contradiction. See Fed. R. Evid. 404(b); United States v. English,

520 F. App’x 208, 209 (4th Cir. 2013) (“[T]he district court did not abuse its discretion in admitting

the witness’ impeachment testimony regarding extrinsic evidence for purposes of contradicting

English’s testimony.”).

The parties now seek clarification regarding whether defendant may introduce such

evidence to impeach by contradiction, generally, or whether he may do so only to the extent it goes

to damages. The court holds in abeyance ruling on that question. To the extent counsel seeks to

impeach by contradiction a fact unrelated to damages, consistent with the court’s previous holding

with respect to plaintiff’s topic No. 4 regarding Soheil’s prior bad acts, (DE 168 ¶ 4), counsel is

cautioned to conference with the court beforehand to ensure it properly is utilized. See, e.g., United

States v. Grover, No. 94–5903, 1996 WL 226262, at *5 (4th Cir. May 6, 1996) (“District courts

should . . . exclude extrinsic evidence which seeks to impeach by contradiction when the fact that

the evidence supports or undermines is collateral or irrelevant to the material issues in the case.”);

Weinstein §§ 607.06[1], 608.20[3][a] (impeachment by contradiction evidence must “directly

contradict[] a witness’s factual testimony”).

In sum, that part of plaintiff’s motion seeking exclusion of any reference to the mental and

physical health diagnoses or treatment of Soheil is GRANTED IN PART, DENIED IN PART, and

HELD IN ABEYANCE IN PART as set forth herein.

B. Plaintiff’s Topic No. 2 (Testimony by Soheil’s Treating Healthcare Providers) (DE

168)

Plaintiff moves to exclude testimony by Soheil’s treating healthcare providers, and

contends that pursuant to this court’s rulings at February 6, 2023, pretrial conference no treating

healthcare witnesses are permitted to testify at trial. The court agrees.

Medical records available, including involuntary commitment records, appear adequate for

the limited purpose for which such evidence is here admissible — impeachment by contradiction.

Particularly where such testimony runs the risk of devolving into a mini trial on Soheil’s prior

actions upon which treatment was sought, the court at this time does not see the value of testimony

by treating healthcare professionals as tipping the scale in favor of admission. See Fed. R. Evid.

403.

Accordingly, that part of plaintiff’s motion seeking to exclude testimony by Soheil’s

treating healthcare providers is GRANTED.

C. Plaintiff’s Topic No. 9 (Inaccurate Assumption Testimony) (DE 168)

Plaintiff requests that eyewitness testimony by Chadwick Caudle (“Caudle”) regarding his

assumptions about the interaction between defendant and Soheil be excluded. Caudle, who

witnessed events in question, previously testified that he “could tell that the other person [Soheil]

had something in their hand, like, pointing it at the officer, but he could not tell what that was.”

(DE 107-2 at 21:21-25). Caudle later stated: “Well, his right hand was extended forward, so I

made the assumption that there was something in it. I assumed it was a gun.” (Id. at 29:24-30:1).

“The subject had his hand out towards the officer. I just – I assumed that there was – that it was a

gun.” (Id. at 23:18-20). “I assumed they were shooting at each other.” (Id. at 25:8-9).

Whether Soheil had a weapon at the time of the confrontation with defendant is highly

relevant to plaintiff’s allegations of assault and battery, wrongful death, and excessive force.

Testimony by a witness that he assumed Soheil had a firearm, without more, is substantially more

prejudicial than probative, and Caudle’s testimony in that limited respect is excluded. See Fed. R.

Evid. 403. The court, however, emphasizes that this holding is limited to statements containing

the bare assumption that Soheil had a gun in his hand. It does not reach, for instance, testimony

regarding what Caudle did in fact see, and whether what he observed was consistent with Soheil

holding a weapon. See Fed. R. Evid. 602.

This part of plaintiff’s motion is accordingly GRANTED.

D. Plaintiff’s Topic Nos. 10 (Leading Questions During Direct Examination) and 14

(Defendant Character Evidence) (DE 168)

Plaintiff moves to exclude portions of testimony identified by defendant in his final pretrial

disclosures which plaintiff contends was elicited through leading questions. Plaintiff also requests

that the court prohibit leading questions to any witness on direct examination at trial unless the

party seeking the line of questioning first seeks permission from the court. Additionally, plaintiff

moves to exclude testimony as to defendant’s character, except as to truthfulness and only if his

truthfulness is attacked.

These arguments are more properly considered at trial upon proffer or introduction by

defendant of such evidence. Accordingly, these parts of plaintiff’s motion are HELD IN

ABEYANCE.

E. Plaintiff’s Topic No. 13 (Raleigh Police Department Determinations) (DE 168)2

Plaintiff moves to exclude any reference to determinations regarding the facts at bar by the

Raleigh Police Department (“RPD”) Internal Affairs Unit. At February 6, 2023, pretrial

conference, defendant argued in favor of admission of these determinations on the basis that

plaintiff intended to introduce evidence of prior investigations and violations to establish similar

past conduct for consideration of punitive damages. Defendant argued that to the extent prior

violations are introduced to support punitive damages, principles of fairness require that defendant

be permitted to introduce evidence that, with respect to the incident in question, internal affairs

found violation only of the body worn camera policy. Plaintiff thereafter suggested he would not

introduce internal affairs documents, but noted he might still seek to introduce evidence of prior

use of force by defendant.

Where defendant seeks to admit RPD determinations regarding the conduct at issue for the

purpose of providing context for evidence introduced by plaintiff, the court HOLDS IN

ABEYANCE ruling on this part of the motion until trial. However, to provide guidance for the

parties in their trial planning, the court notes that it will not permit plaintiff to use findings and

reports by internal affairs as both a sword and shield. Rather, to the extent plaintiff seeks to

introduce evidence of past violations by defendant of policy, or investigations thereto, he likely

opens the door to introduction by defendant of evidence of policy determinations regarding

defendant’s encounter with Soheil.

2 Defendant at February 6, 2023, pretrial conference agreed to withdraw evidence of determinations by Wake

County District Attorney Lorrin Freeman.

F. Plaintiff’s Topic No. 15 (Criminal History of Witnesses Troy Bryant and Christopher

King) (DE 168)

Plaintiff moves to exclude evidence related to any arrest or criminal history of witness Troy

Bryant (“Bryant”) or Christopher King (“King”) pursuant to Fed. R. Evid. 609 and 403. Under

Rule 608, “[e]xcept for a criminal conviction under Rule 609, extrinsic evidence is not admissible

to prove specific instances of a witness’s conduct in order to attack or support the witness’s

character for truthfulness.” Fed. R. Evid. 608(b). Rule 609 provides in relevant part that evidence

of a criminal conviction, however, “must be admitted, subject to Rule 403, in a civil case . . . in

which the witness is not a defendant” “for a crime that, in the convicting jurisdiction, was

punishable by death or by imprisonment for more than one year.” Fed. R. Evid. 609(a).

The burden of establishing that the elements of Rule 609 have been met is on the party who

seeks to introduce the evidence. United States v. Cunningham, 638 F.2d 696, 697 (4th Cir.1981);

see United States v. Meserve, 271 F.3d 314, 327-28 (1st Cir. 2001) (“[T]he party seeking to

introduce evidence of a prior conviction for impeachment purposes under Rule 609, [is] obligated

to have researched [the witness’s] prior offenses and to have determined that they were

admissible.”). Defendant has not responded to this part of plaintiff’s motion, nor has he otherwise

sought before the court to introduce evidence of criminal conviction. Thus, decision by the court

on this issue is premature, and the court HOLDS IN ABEYANCE its ruling.

G. Plaintiff’s Topic No. 18 (Uniforms at Trial) (DE 217)

Plaintiff requests that defendant and any other off duty captain or officer witness not be

permitted to attend trial in uniform. Plaintiff expresses concern that defendant and officer

witnesses, though off duty, will wear their uniforms to enhance their credibility before the jury.

The court expects defendant, sued in his individual capacity, will appear for trial in civilian

clothes. To the extent defendant seeks to call law enforcement officers to the witness stand, and

some witness must for professional reason come in uniform, a limiting instruction will be given.

Otherwise, the court reasonably expects any law enforcement witness not on duty called to the

witness stand also will be attired in civilian clothes.

If the court’s expectations are out of line with defendant’s understandings, defendant has

seven days to file response to this aspect of plaintiff’s additional motion in limine. Otherwise, in

avoidance of prejudice concerning to plaintiff, to the extent such officer witnesses are off duty,

civilian attire shall be worn and in this part the motion is GRANTED.

H. Plaintiff’s Topic No. 19 (Incompetent Witness) (DE 217)

Plaintiff moves for the interview and transcript of Tiare Powell (“Tiare”) to be excluded

from trial, and that Tiare additionally be excluded as a witness unless the court first determines his

competency pursuant to N.C. R. Evid. 601(b) and Fed. R. Evid. 601. (DE 217 at ¶ 19).

The parties stipulate that it was Tiare who informed defendant that Soheil stole a cellphone,

which accusation in turn resulted in defendant’s pursuit of Soheil. (Amended Proposed Pretrial

Order (DE 224) ¶¶ 9-18). Given Tiare’s role, both parties subpoenaed him to trial and previously

listed his recorded and transcribed statements — that were not in court or subject to cross

examination — as joint stipulated exhibits. (Pretrial Order (DE 174) at 7, 9, 10).

Thereafter, on January 31, 2023, counsel for both parties separately received calls from

Nina Powell (“Nina”), Tiare’s mother. Nina advised plaintiff’s counsel of her concern about the

veracity of the recorded and transcribed statements by Tiare as she was not present and

accommodations were not made for his special needs. She also shared similar concerns about any

testimony Tiare might give at trial. On this basis, plaintiff rescinds his stipulation to any recorded

or transcribed statement by Tiare and instead moves that these statements be excluded as irrelevant,

substantially more prejudicial than probative, and inadmissible hearsay without an exception or

exclusion.

That part of plaintiff’s motion seeking exclusion of Tiare at trial unless the court first

determines through voir dire outside of the jury’s presence his competency to testify is

GRANTED. That part seeking exclusion of Tiare’s recorded or transcribed statement is HELD

IN ABEYANCE until the court hears from defendant on the same.

I. Defendant’s Topic No. 5 (Testimony, Argument Or Other References to the Shooting

As “Murder,” “Homicide,” Or Any Derivative Thereof) (DE 170)

Defendant moves to exclude any testimony, argument, or other references to the shooting

as “murder,” “homicide,” or any derivative thereof. Soheil’s autopsy report lists Soheil’s “manner

of death” as “homicide,” and defendant includes this report as the first exhibit he expects to offer

at trial. (Amended Proposed Pretrial Order (DE 224) at (K)(1)). On this basis, the court concludes

that though overuse of the term “homicide” may become substantially prejudicial, an isolated

reference is admissible. Should defendant feel that the term is being overused at trial, he may bring

the issue before the court at that time.

The term “murder,” however, carries with it criminal connotations that may engender

confusion with the jury in this civil case, which as a factual matter already resembles a criminal

case, and may also bring to bear issues of intent and premeditation not properly here considered.

The value of using the term “murder,” particularly where alternatives such as the term “homicide”

are available, is thus substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury. See Fed. R. Evid. 403. Defendant may raise any issue regarding a

“derivative thereof” as need arises.

Defendant’s motion is GRANTED IN PART and DENIED IN PART.

J. Defendant’s Topic No. 6 (Graphic Photographs of Soheil’s Deceased Body, Face, Or

Wounds) (DE 170)

Defendant moves to exclude all graphic photographs of Mojarrad’s deceased body, face,

or wounds, including autopsy photos or photos from the night of the shooting, with the exception

of the photograph taken from the body worn camera of an officer on the scene showing Mojarrad’s

arm and hand holding a knife.

Plaintiff has alleged wrongful death, and one of the “[d]amages recoverable for death by

wrongful act” includes “[c]ompensation for pain and suffering of the decedent.” N.C. Gen. Stat.

§ 28A-18-2(b)(2). On this basis, photographs of Mojarrad’s wounds, depicting the nature and

degree of the injuries Soheil sustained, are relevant and, as a general matter, are not unfairly

prejudicial.

Additionally, defendant has testified in his defense that his initial shots fired were not

debilitating and Soheil continued to pose a deadly threat until the final volley of shots. (Edwards

Dep. Dkt. No. 107-1, 264:23-269:18). Such testimony entitles the jury to view the injuries Soheil

sustained.

To the extent defendant objects to a specific photograph as overly gruesome, duplicative,

or otherwise unfairly prejudicial, he may bring it to the court’s attention. That part of defendant’s

motion seeking wholesale exclusion, however, is DENIED.

K. Defendant’s Topic No. 8 (“Reptile Theory” Arguments) (DE 170)

Defendant moves to exclude use of the “reptile theory,” by which plaintiff would endeavor

to scare the jury into reaching a fear-based verdict, instead of a verdict based on logic and

appropriate application of the facts to the law.

Defendant’s motion, targeting abstract style of argument, is insufficiently concrete for

ruling and accordingly is DENIED. Should defendant at trial take issue with specific evidence or

statement on the basis of the “reptile theory,” he may raise the issue at that time.

L. Defendant’s Topic No. 9 (Arguments Requesting the Jurors “Send a Message”) (DE

170)

Defendant moves to exclude any arguments, questions, or testimony to the effect that the

jury needs to send a message to defendant or members of law enforcement or prevent the alleged

conduct from occurring in the future. “[R]emarks intended to enlist a jury as the ‘conscience of

the community’ may be improper where they are calculated to inflame the jury.” United States v.

Brown, 70 F. App’x 99, 105 (4th Cir. 2003); see United States v. Duffaut, 314 F.3d 203, 211 (5th

Cir. 2002) (noting that “a prosecutor may appeal to the jury to act as the conscience of the

community, so long as the comments are not calculated to inflame”); United States v. Beasley, 2

F.3d 1551, 1559-60 (11th Cir. 1993) (concluding that several statements by prosecution instructing

jury that it was a participant in a broad “war on drugs” were “appeal[s] by the prosecutor for the

jury to act as ‘the conscience of the community,’” were “calculated to inflame” the jury, and were

thus improper). Arguments are inflammatory where they ask the jurors to reach a verdict based

upon their emotional response to the evidence, rather than on the facts admissible at trial and the

law applicable to the claims in issue. See United States v. Francis, 329 F. App’x 421, 428 (4th

Cir. 2009) (describing testimony as “inflammatory” where it “subordinate[s] reason to emotion”).

Plaintiff seeks punitive damages, however, and therefore arguments encouraging jurors to

punish defendant for his alleged conduct would be based upon applicable law, and therefore not

per se inflammatory. See Haarhuis v. Cheek, 255 N.C. App. 471, 480 (2017) (“[T]he purpose of

punitive damages is to ‘punish,’ N.C. Gen. Stat. § 1D-1; therefore, a ‘punishment’ argument might

have been inappropriate during the compensatory phase.”).

Accordingly, defendant’s motion is DENIED in that part where plaintiff seeks to introduce

arguments pertaining to punitive damages, encouraging jurors to punish defendant for his alleged

conduct, and GRANTED in remaining part.

M. Defendant’s Topic No. 12 (Early Warning System Reports) (DE 170).

Plaintiff seeks admission into evidence early warning system reports in the seven years

prior to April 20, 2019, the date of Soheil’s deadly encounter with defendant. Defendant moves

for these reports to be excluded as irrelevant, prejudicial, character evidence, evidence of prior bad

acts, and inadmissible hearsay.

Defendant’s arguments lack reference to specific reports, and instead incorporate by

reference arguments generally made with respect to prior excessive force complaints, firearm

discharge reports, and personnel reports. The court will not on a wholesale matter exclude all early

warning system reports, particularly where plaintiff seeks punitive damages, and one factor jurors

may consider in determining the amount of such damages if awarded is “the existence and

frequency of any similar past conduct by the defendant.” (See N.C. Gen.Stat. § 1D–35).

That part of defendant’s motion seeking wholesale exclusion of early warning system

reports is accordingly DENIED.

N. Defendant’s Topic No. 14 (Testimony by Geoffrey P. Alpert, Ph.D.) (DE 170)

Defendant renews his objection to testimony by plaintiff’s expert, Geoffrey P. Alpert, as

raised in his prior motion to exclude at docket entry 92. That part of defendant’s motion renewing

his objection does not raise additional arguments or issues, and is DENIED, consistent with this

court’s December 1, 2022, order.

O. Defendant’s Topic No. 17 (Defendant’s Training Records) (DE 170)

Defendant moves to exclude all his training records contending, without specific argument

in support, that they are inadmissible under Fed. R. Evid. 402, 403, and 802 and are protected by

N.C. Gen. Stat. § 160A-168.

Defendant’s training records are relevant to the extent they establish standards of conduct,

thereby aiding the jury in forming an opinion on the objective reasonableness of defendant’s

actions. See Fed. R. Evid. 402, 403. With respect to defendant’s reference to Rule 802, on the

court’s review the records appear to fall under the public records hearsay exception set forth in

Fed. R. Evid. 803(8). If defendant has specific objection to application of that exception, of course

he may bring it to the court’s attention. Finally, N.C. Gen. Stat. § 160A-168(c)(4) allows for

examination of employee personnel files “[b]y order of a court of competent jurisdiction” such as

this one.

Accordingly, defendant’s motion in this part is DENIED. Plaintiff, however, is again

cautioned that to the extent he uses defendant’s training records to establish or imply that defendant

was not acting in compliance with standard policy on the night in question, he may open the door

to introduction by defendant of RPD determinations with respect to the conduct in issue. (See DE

168 at ¶ 13).

P. Defendant’s Topic No. 21 (RPD’s Body Worn Cameras and Mobile Video Recording

Policy) (DE 170)

Defendant moves to exclude RPD’s body worn camera policy. Plaintiff represents in his

response in opposition that this evidence will be used to establish that defendant did not activate

his body worn camera during the events at issue in violation of RPD policy. As this court held at

February 6, 2023, pretrial conference, this evidence is an intrinsic part of the facts, the significance

of which is to be determined by the jurors. Defendant’s motion in this part is DENIED.

Q. Defendant’s Topic No. 22 (Body Worn Camera and Mobile Video Recording Audits

of Defendant Edwards) (DE 170)

Plaintiff intends to introduce evidence of body worn camera and mobile video recording

audits of defendant, which evidence defendant seeks to exclude. Plaintiff provides in his response

in opposition that this evidence would be used to counter defendant’s testimony that he did not

activate his body worn camera on the night in question because he forgot, had not had it very long,

and his training on its use was deficient. The evidence thus goes directly to defendant’ credibility,

and may serve as evidence of his motive, plan, and intent with regard to the incident at issue.

Defendant aargues the videos contain inadmissible hearsay in the form of notes and

statements from undesignated individuals. Where those statements are not offered for the truth of

the matter asserted, however, and instead are offered as part of a video showing defendant’s prior

use of his body camera, Fed. R. Evid. 802 is inapplicable.

That part of defendant’s motion seeking wholesale exclusion of these audits is accordingly

DENIED. Should defendant feel that the evidence becomes duplicative or otherwise unfairly

prejudicial, of course defendant may raise the issue at that time.

R. Defendant’s Topic No. 23 (Protests, Demonstrations, Memorial Services or Advocacy

Groups) (DE 170)

Defendant contends evidence or testimony related to marches, protests, memorials, and

other advocacy efforts that occurred after Soheil’s death is irrelevant and prejudicial and should

be excluded on that basis. Plaintiff in his response in opposition provides that he does not intend

to enter evidence regarding any march, protest, or any other advocacy effort at trial. Defendant’s

motion is accordingly in that part TERMINATED AS MOOT.

Remaining for consideration is evidence or testimony regarding memorial services. Where

plaintiff claims wrongful death, and the damages permitted under North Carolina Wrongful Death

Statute include the “[s]ervices, protection, care and assistance of the decedent, whether obligatory,

to the persons entitled to the damages recovered” as well as “[s]ociety, companionship, comfort,

guidance, kindly offices and advice of the decedent to the persons entitled to the damages

recovered,” the court will not as a general matter exclude all reference to Soheil’s memorial

service. N.C. Gen. Stat. § 28A-18-2(b)(4). That part of defendant motion is DENIED.

S. Defendant’s Topic No. 25 (Punitive Damages) (DE 170)

Defendant moves for the first time to dismiss plaintiff’s punitive damages claim. The

deadline for dispositive motions has already passed, and allowance for filing of motions in limine

in advance of trial does not provide renewed opportunity in the case to file such motion, absent

showing that the issues could not earlier have been raised. Defendant has not made that showing,

and his motion is accordingly in this part DENIED.

T. Defendant’s Second Motion in Limine (DE 222)

Defendant in his second motion in limine moves to exclude reference to instances of police

brutality or misconduct unrelated to the events of April 20, 2019, and to exclude testimony by

irrelevant witnesses.

Where parties report in amended proposed pretrial order that agreement has been reached

as to both evidentiary issues identified, (See DE 224 at V. (T-U)), defendant’s motion is

TERMINATED AS MOOT.

CONCLUSION

Based on the foregoing, plaintiff’s first and second motion in limine (DE 168, 217) and

defendant’s first motion in limine (DE 170) are GRANTED IN PART, DENIED IN PART, HELD

IN ABEYANCE IN PART, and TERMINATED AS MOOT IN PART, as set forth herein.

Defendant’s second motion in limine (DE 222) is TERMINATED AS MOOT.

The parties are directed to file on or before May 22, 2023, a second amended joint notice

of disputes regarding the use of deposition testimony at trial informed by the rulings herein, and

by any subsequent agreements between the parties.

Also on or before May 22, 2023, the parties shall file jointly a list of evidentiary disputes

that still require court determination or clarification, including those here held in abeyance if an

agreement has not otherwise been made.

SO ORDERED, this the 25th day of April, 2023.

LOUISE W. FLANAGAN

United States District Judge

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