Brothers v. Board of County Commissioners of Oklahoma County

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

EQULLA M. BROTHERS, as the )

Personal Representative and )

Administratrix of the Estate of )

Daryl Clinton, Deceased, )

)

Plaintiff, )

)

v. ) Case No. CIV-21-418-SLP

)

BOARD OF COUNTY )

COMMISSIONERS OF OKLAHOMA )

COUNTY; TOMMIE JOHNSON III, )

in his official capacity as Oklahoma )

County Sheriff; TURNKEY HEALTH )

CLINIC, LLC, an Oklahoma limited )

liability company; DR. KENT KING, )

individually; and JOHN DOES I-X, )

individually, )

)

Defendants. )

O R D E R

Before the Court is Plaintiff’s Motion in Limine [Doc. No. 91]. Defendant has filed

a Response [Doc. No. 94]. Plaintiff has been given the opportunity to file a reply but has

failed to timely do so. See LCvR 7.1 (i). For the reasons that follow, Plaintiff’s Motion is

GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART.

Governing Standard

Plaintiff moves for a pretrial ruling with respect to the admissibility of evidence in

this action. See Edens v. The Netherlands, Ins. Co., 834 F.3d 1116, 1130 (10th Cir. 2016)

(recognizing that a motion in limine is a “pretrial request that certain inadmissible evidence

not be referred to or offered at trial” (quotations omitted)). The purpose of such rulings is

to avoid delay and unnecessary trial interruptions. See, e.g., Dry Clean Super Ctr., Inc. v.

Kwik Indus., Inc., No. 08-cv-578-WJM-CBS, 2012 WL 503510 at *4 (D. Colo. Feb. 15

2012) (unpublished op.).

A district court’s in limine rulings are preliminary in nature and the court “may

change its ruling at any time for whatever reason it deems appropriate.” Jones v. Stotts, 59

F.3d 143, 146 (10th Cir. 1995) (citations omitted); see also Luce v. United States, 469 U.S.

38, 41 (1984) (“The [in limine] ruling is subject to change when the case unfolds . . . .

[E]ven if nothing unexpected happens at trial, the district judge is free, in the exercise of

sound judicial discretion, to alter a previous in limine ruling.”).

Discussion

Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging a violation of the

constitutional rights of the decedent, Daryl Clinton. Plaintiff relies, in part, on alleged

systemic failures at the Oklahoma County Detention Center (also referred to by the parties

as the Oklahoma County Jail) to demonstrate an unconstitutional policy or custom of the

Sheriff with respect to medical care at the Jail. Clinton was a pretrial detainee at the Jail

from August 6, 2019 through August 10, 2019. He was arrested on charges of drug/narcotic

violations, after having been involved in a single vehicle accident in which he backed his

car into a pole. Clinton died on August 10, 2019. The medical examiner identified the

cause of Plaintiff’s death as “blunt force trauma of cervical spine” and the manner of death

as “accident.” See Doc. No. 74-12 at 2.

Plaintiff seeks to exclude seven different categories of evidence. The Court

addresses each in turn, below.

I. Any Criminal or Civil Litigation History Involving Plaintiff, Daryl Clinton,

or Other Family Members of Daryl Clinton

Plaintiff moves to exclude evidence of any “legal history involving Plaintiff, Daryl

Clinton, or other family members of Daryl Clinton (Emmit Clinton, Dwight Clinton,

Ernestine Thomas).” Pl.’s Mot. at 2. Plaintiff argues that such evidence lacks relevance

and would be unduly prejudicial, confusing and distracting.

In response, Defendant argues that evidence about the reason for Clinton’s arrest is

relevant for purposes of establishing how Clinton’s accident happened, why Clinton was

arrested and the reason for his transport to St. Anthony Hospital prior to his detention at

the Jail. Defendant further argues that Clinton’s criminal history may be relevant to the

issue of damages. According to Defendant, family admitted that “Clinton was a drug

dealer.” Def.’s Resp. at 2.

Limited evidence about the accident, the basis for Clinton’s arrest, and the reason

for his transport to St. Anthony Hospital are relevant to Plaintiff’s claims. This evidence

does not appear to be within the scope of Plaintiff’s Motion.

But evidence about the legal or criminal history of Clinton, or family members of

Clinton does not appear to have any relevance to Plaintiff’s claims and further that even if

the evidence had limited relevance its probative value would be outweighed by a danger of

unfair prejudice. However, without identification of specific evidence or the context in

which such evidence may be introduced at trial, the Court reserves any ruling as to its

admissibility at this time. Defendant is cautioned that before introducing any such

evidence, Defendant should approach the bench and request a ruling. The Court, therefore,

DENIES WITHOUT PREJUDICE Plaintiff’s Motion with respect to this evidence.

II. Comments or Suggestions that Daryl Clinton, Due to his Arrest Record, was

Familiar with the “Process” of Requesting Further Medical Care

Referencing Defendant’s Motion for Summary Judgment [Doc. No. 74], Plaintiff

points to a statement made therein to the effect that Clinton was familiar with the process

of obtaining medical care at the Jail. Plaintiff moves to exclude any such comments or

suggestions at trial, noting that Defendant made this assertion in its summary judgment

motion without any factual support.

In response, Defendant argues that “Plaintiff had been in the Oklahoma County jail

previously and from that experience knew how to request medical services.” Def.’s Resp.

at 3. Defendant points to an inference to be drawn from other evidence, not any evidence

itself. Defendant is cautioned that such inferences appear to lack proper evidentiary

support. The mere fact of Clinton’s prior arrest history, without more, is insufficient

evidence upon which to draw such an inference. At this time, the Court GRANTS

Plaintiff’s Motion. If admissible evidence at trial is adduced to support drawing such an

inference, Defendant can approach the bench and request permission from the Court to

make arguments or comments regarding the same at that time.

III. Comments or Suggestions that Daryl Clinton was Treated by a Physician for

his Spinal Injury at OCDC and Opinion Testimony

Regarding Clinton’s Spinal Injuries from Jacob Strohl, M.D.

During his detention, Clinton was seen by Jacob Strohl, M.D. for a mental

evaluation. The summary judgment record showed that Dr. Strohl solely conducted a

mental evaluation. Dr. Strohl is a psychiatrist. He did not refer Clinton to any other

medical professional with respect to his spinal cord injury. Plaintiff argues that Defendant

should not be able to argue that Clinton was treated for his spinal cord injury by Dr. Strohl

as that would be “inaccurate, distracting, and a mischaracterization of the evidence.” Pl.’s

Mot. at 5. Plaintiff further argues that Dr. Strohl should not be permitted to give any

opinion testimony about Clinton’s spinal or physical injury. Plaintiff contends Dr. Strohl

has not been designated as an expert and is not qualified to give expert testimony outside

of matters related to psychiatry.

In response, Defendant does not directly address the admissibility of Dr. Strohl’s

testimony. Defendant concedes that Dr. Strohl did not treat Clinton for a spinal injury.

Def.’s Mot. at 4. (“The entrance of Jacob Strohl, M.D. into Clinton’s cell on August 9,

2019 was not to treat him for a spinal injury. Everyone agrees with that.”). Thus, the Court

GRANTS Plaintiff’s Motion with respect any argument that Dr. Strohl treated Clinton’s

spinal cord injury.

Defendant is silent with respect to any expert testimony by Dr. Strohl as to Clinton’s

spinal or physical injury. Instead, Defendant states the following:

The parties agree an MD psychiatrist went to check [on Clinton]. The parties

agree that Dr. Strohl entered no orders for treatment or transport for a spinal

injury after seeing Clinton for several minutes. If the psychiatrist concluded

the paralysis was real, or if the psychiatrist suspected Clinton had an

undiagnosed medical condition, the psychiatrist would have entered orders

for treatment or transport.

Def.’s Mot. at 5. Defendant implicitly concedes that Dr. Strohl will not give any expert

opinion testimony about Clinton’s spinal or physical injury. Accordingly, the Court

GRANTS Plaintiff’s Motion in limine as to any such testimony.

IV. Comments or Suggestions that Defendant is not Liable for the Acts and

Omissions of Medical Staff

Plaintiff argues that “[i]t is apparent from Defendant’s Motion for Summary

Judgment that he may shift all blame in this matter to Turn Key Health and the medical

staff of OCDC and further opine that Defendant is not liable for such conduct.” Plaintiff

argues this is a “misstatement of the law that would confuse and mislead the jury.” Pl.’s

Mot. at 6.

In response, Defendant argues that “[w]hether medical jail staff acted with

deliberate indifference was taken out of the case when Plaintiff settled with Turn Key and

dismissed Turn Key and the medical director with prejudice.” Def.’s Resp. at 6. The Court

agrees with Plaintiff that this is legally incorrect. The Court addressed this matter in its

summary judgment ruling. See Order [Doc. No. 100] at 20 and n. 14-15.

Defendant further states: “The argument is not that the Sheriff is not liable for the

actions of Turn Key’s employees but rather the actions of Turn Key’s employees

demonstrate that detention officers reported every medical concern they observed to

medical staff.” Def.’s Resp. at 7. Defendant’s argument is unclear and seems to contradict

his prior (incorrect) argument that the settlement with Turn Key removed the issue of the

deliberate indifference of medical staff from the case.

To the extent Plaintiff’s Motion seeks to exclude any legally incorrect argument at

trial, the Motion is GRANTED. Otherwise, the Court DENIES WITHOUT PREJUDICE

Plaintiff’s Motion. It is unclear to the Court whether arguments by Defendant as to

“shifting blame” is impermissible without further context.

V. Comments or Suggestions that Defendant’s Duty was Limited to Alerting

Medical Staff of Daryl Clinton’s Condition

Plaintiff contends that Defendant should not be able to “suggest to the jury that as

long as security staff passed information of Clinton’s condition to medical staff, they

satisfied their duties.” Pl.’s Mot. at 10. Plaintiff argues this is a misstatement of the law

and should not be permitted.

In Response, Defendant makes an argument similar to that made in conjunction with

the immediately preceding category of evidence. Defendant argues: “The Plaintiff’s

premise is that deliberate indifference in this case includes a medical professional failing

to treat a serious medical condition properly. [citation omitted]. Indeed, that is no longer

in the case because Plaintiff dismissed the medical professionals with prejudice.” Def.’s

Resp. at 8.

Again, the Court addressed the issue in its summary judgment ruling. See Order

[Doc. No. 100] at 17-20. And the Court determined that disputed issues of material fact

exist as to the Sheriff’s liability arising from or related to the deliberate indifference of

detention officers and medical personnel at the Jail. Although the individual liability of

any medical professional is no longer at play, evidence of the deliberate indifference of any

medical professional remains relevant to the determination of the Sheriff’s liability.

The Court finds Plaintiff’s request for an in limine ruling is overly broad. Defendant

is certainly permitted to introduce evidence to show detention staff attempted to fulfill their

gatekeeping duties. The Court further finds Defendant is incorrect to argue deliberate

indifference of any medical provider is no longer in the case. The Court DENIES

WITHOUT PREJUDICE Plaintiff’s Motion as to this evidence, but admonishes the parties

as to the parameters set forth. The Court RESERVES further ruling on this issue until the

specific testimony is offered and the particular context is made clear.

VI. Comments or Suggestions that Treatment for Daryl Clinton Before August

10, 2019 Would not Have Saved His Life

Plaintiff argues that “[i]n the event Defendant attempts [to] argue that any further

medical care regarding Clinton’s spinal trauma and splenic rupture would not have saved

Clinton’s life, such arguments are not in accord with the evidence, particularly admissions

from Defendant’s own expert.” Pl.’s Mot. at 10. Plaintiff contends that “Defendant should

be restrained by [sic] suggesting or arguing in any fashion that Clinton was a ‘lost cause’

or that treatment would have been futile.” Id. at 11.

Defendant responds that “[t]here is no testimony or document in this case about

whether or not Clinton would have survived if the medical professionals charged with his

care at St. Anthony Hospital or the Oklahoma County Detention Center had made different

decisions. The Sheriff need put on no such proof.” Def.’s Resp. at 10. The Court construes

Defendant’s response as a concession that Defendant does not intend to argue that

treatment would have been futile. Defendant qualifies this response, however, by stating

that it is not an issue unless Plaintiff “injects” it. Id. at 11.

The Court DENIES WITHOUT PREJUDICE Plaintiff’s Motion as to this evidence.

The extent to which Defendant may be permitted to make such argument is dependent on

Plaintiff’s presentation of evidence and/or interjection of the issue at trial. Thus, the Court

declines to rule on this issue until the specific testimony is offered and the particular context

is made clear.

VII. General Inflammatory and Irrelevant Suggestions

Plaintiff seeks to prevent Defendant “from making a host of inflammatory and

irrelevant comments that could improperly frame or taint this case.” Pl.’s Mot. at 11.

Plaintiff then lists the following:

A. Critiques of the Plaintiffs’ bar generally, such as arguments regarding

“excessive” or “runaway” verdicts.

B. Arguments or testimony of “overcrowded” courtrooms, or any effort

by Defendant to suggest that the instant case is one that causes backlogs or

over-crowding of the court system.

C. Arguments that Plaintiff has asked for a greater amount of money than

Plaintiff actually expects to be awarded, or that any award to the Plaintiff

would amount to winning the lottery, a welfare program, a “handout”, a “get-

rich-quick” scheme, or that Defendant’s counsel is shocked or surprised by

the damages requested.

D. Arguments or testimony regarding Plaintiff’s counsels’

compensation.

E. Arguments or testimony that taxpayers, insurance companies,

insurance customers, financial institutions, and/or customers of financial

institutions would “foot the bill”, be negatively impacted by, or otherwise

suffer from a verdict rendered in Plaintiff’s favor.

F. References to Clinton as a drug dealer, drug addict, druggie, or similar

remarks.

Pl.s’ Mot. at 11-12.

In response, Defendant makes no concessions, instead arguing that the evidentiary

items “are so poorly defined that response is problematic.” Def.’s Resp. at 11. As to item

E and its reference to “taxpayers,” Defendant states that “the jurors will get the idea that

taxpayers are being sued” because the Sheriff is being sued in his official capacity, the

Plaintiff will refer to the “county jail,” and assistant district attorneys are defending the

county. Id. But Plaintiff seeks exclusion of affirmative arguments by Defendant that

taxpayers will “foot the bill.” Jurors “getting the idea” from these circumstances is distinct

from Defendant affirmatively making such argument.

In response to item F, Defendant argues that if Plaintiff attempts to include lost

wages or income as an item of damages, evidence of Clinton’s drug dealing might come

up as “the only truthful answer in response to the very legitimate questions about how

Clinton made a living.” Id. at 12.

In general, the Court finds the list of items identified by Plaintiff are excludable as

irrelevant and/or inflammatory and unduly prejudicial. See Fed. R. Evid. 402, 403.

However, without identification of specific evidence or the context in which such evidence

may be introduced at trial, the Court reserves any ruling as to their admissibility at this

time. The Court, therefore, DENIES WITHOUT PREJUDICE Plaintiff’s Motion with

respect to this evidence.

IT IS THEREFORE ORDERED that Plaintiff’s Motion in Limine [Doc. No. 91] is

GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART.

IT IS SO ORDERED this 29" day of June, 2023.

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE

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