Motton

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

BRANDON MOTTON, )

)

Plaintiff, )

)

v. ) Case No. 4:21-cv-04093

)

CORY RUARK, et al. )

)

Defendants. )

ORDER

Plaintiff, then proceeding pro se, brought the present lawsuit pursuant to 42

U.S.C. § 1983 alleging a Fourteenth Amendment claim for failure to protect from

harm. The matter comes before this Court for ruling on the parties’ respective

motions in limine, (Docs. 137, 138), and other issues related to the upcoming trial.

LEGAL STANDARD FOR MOTIONS IN LIMINE

A district court has broad discretion in ruling on evidentiary questions

presented before trial. Jenkins v. Chrysler Motor Corp., 316 F.3d 663, 664 (7th Cir.

2002). The moving party bears the burden of showing that the evidence sought to be

excluded is clearly inadmissible for any purpose. Mason v. City of Chicago, 631 F.

Supp. 2d 1052, 1056 (N.D. Ill. 2009). A district court may alter a pretrial ruling

regarding the admissibility of evidence should it become necessary as the trial

progresses. Perry v. City of Chicago, 733 F.3d 248, 252 (7th Cir. 2013).

DEFENDANT’S MOTION IN LIMINE (DOC. 137)

Motion in Limine No. 1

Defendant seeks an order barring “any lay witness from giving medical

opinions on diagnoses, causation, and the necessity of treatment regarding

Plaintiff’s claims of injury.” (Doc. 137 at 3).

A lay witness may offer opinion testimony to the extent that it is rationally

based on the witness’ perception, helpful in determining a fact at issue, and not

based upon scientific evidence. Fed. R. Evid. 701. Expert testimony is also not

required “to assist jurors in determining the cause of injuries that are within their

common experiences or observations.” Hendrickson v. Cooper, 589 F.3d 887, 892

(7th Cir. 2009).

Plaintiff may accordingly testify as to where he was struck during the

incident in question, whether and in what part of his body he experienced pain

thereafter, and the severity and duration of that pain. Defendant has not identified

any specific expert or medical opinion testimony Plaintiff seeks to introduce at trial,

aside from the fact that Plaintiff may use the terms “migraine” and “head pain”

interchangeably. Any issues arising from that testimony are likely to be resolved on

cross examination. Defendant’s request is denied.

Motion in Limine No. 2

Defendant seeks to admit evidence regarding Plaintiff’s criminal history.

Defendant’s request is granted in part and denied in part as outlined in the Court’s

ruling, infra, on Plaintiff’s Motion in Limine request no. 1 involving the same

evidence.

Motion in Limine No. 3

Defendant seeks to bar evidence regarding any indemnification he may

receive from the County or payment of any judgment by the County’s insurer.

Plaintiff does not object. The request is granted. See Fed. R. Evid. 411.

Motion in Limine No. 4

Defendant seeks to bar Plaintiff from making “golden rule” or “guardians of

the community” arguments or admitting evidence along these lines. A “golden rule”

argument is an argument “in which the jury is asked to put itself in the plaintiff’s

position.” United States v. Teslim, 869 F.2d 316, 328 (7th Cir. 1989). A “guardians of

the community” argument asks jurors to discharge their duties within the context of

protecting the community. Smith v. City of Chicago, 2025 WL 1744919, at *23 (N.D.

Ill., filed Jun. 24, 2025). Both arguments have been found improper. Id.; Teslim, 869

F.2d at 328 (a “golden rule” argument is “universally recognized as improper

because it encourages the jury to depart from neutrality and to decide the case on

the basis of personal interest and bias rather than on the evidence.”).

Plaintiff states that he does not intend to make either argument, see (Doc.

142 at 6), and, therefore, Defendant’s request is granted insofar as it relates to such

arguments. The record does not disclose any specific testimony or evidence that

would fall under these types of arguments. Defendant’s request is denied as to any

other relief requested.

Motion in Limine No. 5

Defendant seeks an order barring previously undisclosed witnesses, opinions,

or documents. Plaintiff does not object. Defendant’s request is granted.

Motion in Limine No. 6

Defendant seeks an order barring argument or reference to punishing or

“sending a message” to Rock Island County, the Rock Island County Sheriff’s Office,

or law enforcement generally. Plaintiff states that he does not intend to assert an

argument as it relates to these organizations or Defendant. Plaintiff objects as it

relates to arguments regarding punitive damages.

Defendant’s request is granted to the extent that it seeks to bar argument as

it relates to the organizations mentioned above. Defendant’s request is denied as to

any other relief requested. Nothing in this Order shall prohibit Plaintiff from

asserting arguments related to any factor properly considered with respect to

punitive damages.

Motion in Limine No. 7

Defendant seeks an order precluding improper character evidence against

him, including disciplinary records and unrelated lawsuits filed against him.

Defendant has not identified any specific information he seeks to exclude, and,

absent such information, the Court finds that Defendant has not shown this

information is not admissible for any purpose. Any determinations regarding the

admissibility of this evidence are best reserved for trial. Defendant’s request is

denied.

Motion in Limine No. 8

Defendant seeks an order precluding an argument that Plaintiff waited a

long time for justice or other reference to the length of time this case has been

pending. Plaintiff does not object. Defendant’s request is granted as it relates to

arguments related to the passage of time.

Motion in Limine No. 9

Defendant seeks an order precluding evidence or argument about alleged

violations of jail policies. Plaintiff states that he intends to offer evidence “detailing

Defendant’s violations of jail policies and procedures to demonstrate the actions of a

reasonable officer.” (Doc. 142 at 12). Plaintiff elaborates that he “should be

permitted to introduce the policies to show that Defendant failed to conduct himself

as a reasonable officer when allowing an inmate to go unescorted to his cell while

Mr. Motton was on his one-hour out.” Id. at 13.

“[A] violation of a jail policy is not a constitutional violation enforceable under

42 U.S.C. § 1983.” Pulera v. Sarzant, 966 F.3d 540, 551 (7th Cir. 2020). Because the

objective reasonableness analysis requires the trier of fact to consider the facts and

circumstances specific to each case, the Seventh Circuit has held that evidence

regarding institutional policies and the violations of same are not relevant to this

inquiry. Thompson v. City of Chicago, 472 F.3d 444, 455 (7th Cir. 2006) (“[T]he

violation of police regulations or even a state law is completely immaterial as to the

question of whether a violation of the federal constitution has been established.”);

Rakes v. Roederer, 117 F.4th 968, 985 (7th Cir. 2024) (same); see also Kingsley v.

Hendrickson, 576 U.S. 389, 397 (2015) (“[O]bjective reasonableness turns on the

facts and circumstances of each particular case…A court must make this

determination from the perspective of a reasonable officer on the scene, including

what the officer knew at the time, not with the 20/20 vision of hindsight.”) (internal

citations omitted).

Plaintiff’s proposed reasons for introducing evidence regarding Defendant’s

alleged violations of jail policy suggest an argument that the policies define how a

reasonable officer should act, and that Defendant’s violations of those policies mean

that his actions were unreasonable. This is just a different way of saying that

Defendant’s violation of a jail policy makes his conduct unconstitutional, which is

not consistent with the applicable law or permissible argument.

Defendant’s request is granted to the extent that it seeks to bar evidence that

Defendant violated a jail policy and argument that the violation of same made

Defendant’s actions unreasonable or unconstitutional.

Motion in Limine No. 10

Defendant seeks an order barring testimony from Plaintiff’s Jail Practices

Expert. Plaintiff retained Arthur Wallenstein as an expert in this case. Mr.

Wallenstein’s expert report makes five findings:

Finding #1: A reasonable officer would have checked whether an

inmate being transferred was going to segregated housing and

adjusted the transportation methods accordingly. CO Ruark failed to

check Hayes’s housing classification before transferring in violation of

industry practice and common knowledge, and thus, Ruark did not

take reasonable measures when transferring Hayes on March 25,

2021, such as using restraints or transferring individually (not in a

group).

Finding #2: A reasonable officer would have checked an inmate’s

behavior history before transferring and adjusted the transportation

methods accordingly. CO Ruark failed to check Hayes’s behavioral

history, which included three prior fights, including a fight the day

prior, and thus, CO Ruark should have used his discretion under RICJ

policy that authorizes restraints “if the Officer has reason to believe

that the inmate may become uncooperative/combative,” to restrain

Hayes during the transfer on March 25, 2021.

Finding #3: A reasonable officer would have escorted, controlled, and

supervised an inmate from point A to point B in alignment with

industry standards and customs, RICJ’s policy, the practices of other

RICJ officers, and common sense. A reasonable officer would have

appreciated the risk of violence to others at the jail when allowing an

inmate to be unescorted, uncontrolled, and unsupervised. CO Ruark

failed to fully escort, control, and supervise Inmate Hayes while

transferring him on March 25, 2021, by not escorting Mr. Hayes to his

cell and ensuring the cell was locked. CO Ruark testified under oath

that fighting was “routine” at RICJ, and thus, permitting inmates, who

are required to be segregated from others, to interact inherently

creates a risk of violence.

Finding #4: A reasonable correctional officer would have recognized

that inmates in segregation should not interact outside of very limited

circumstances, and thus, upon seeing another inmate in the dayroom,

the officer would have taken steps to avoid the inmates interacting

such as ordering the inmate in the dayroom to his cell or taking other

steps to ensure the two inmates did not interact. CO Ruark clearly saw

Motton before allowing Hayes into Lower N, and so, he consciously

chose not to abate the risk of these two inmates, who were both in

protective custody in segregated housing, interacting.

Finding #5: A reasonable correctional officer would call for support

and then immediately intervene when an inmate they were

supervising was attacked right in front of him in order to minimize

injuries and potential loss of life. CO Ruark should have entered the

unit, Lower N, the moment he realized his error in permitting another

Special Management inmate to enter the Dayroom and invade the

presence of another inmate who was using the phone as part of the

one-hour standalone recreation period permitted for inmates within

the Special Management Unit (Lower N). He did not come to the aid of

inmate Motton as Motton was being attacked. CO Ruark waited a

considerable amount of time when he was personally on-site and could

have utilized his 20 years of experience to intervene and assist inmate

Motton while awaiting the arrival of other correctional officers to

assist.

(Doc. 137-2 at 2-4). Defendant argues that Mr. Wallenstein’s findings are improper

legal conclusions that will not assist the jury to understand the evidence and

resolve any issues of fact. Plaintiff asserts that the testimony will “provide[] the jury

with context to understand the actions of a ‘reasonable officer,’ by explaining the

training, policies, and national standards, related to the types of housing and

transportation options that affect the movement of an inmate within the jail.” (Doc.

142 at 15).

Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or

otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will

help the trier of fact to understand the evidence or to determine a fact

in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the

facts of the case.

Fed. R. Evid. 702. The rule imposes a “special gatekeeping function” on district

courts to ensure that the evidence is relevant and reliable before admitting it.

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588-89 (1993); Kumho Tire Co.,

Ltd. v. Carmichael, 526 U.S. 137, 141 (1999); see also Lees v. Carthage Coll., 714

F.3d 516, 521 (7th Cir. 2013) (“[T]he Daubert analysis applies to all expert

testimony under Rule 702, not just scientific testimony.”). In doing so, district courts

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.” Kirk v. Clark

Equip. Co., 991 F.3d 865, 872 (7th Cir. 2021). Expert testimony is relevant if it will

assist the jury “to understand the evidence or to determine a fact in issue.” Fed. R.

Evid. 702. Defendant does not challenge the Plaintiff’s expert’s qualifications or

methodology in his motion.

As discussed above, Thompson and other Seventh Circuit jurisprudence hold

that evidence of a policy violation is immaterial to the question of objective

reasonableness. The Seventh Circuit in Thompson also affirmed the district court’s

exclusion of expert testimony from a police sergeant that would have offered an

opinion about the reasonableness of the officer’s conduct based in part on the

policies at issue in that case. Thompson, 472 F.3d at 457. The Seventh Circuit held

that presentation of the expert testimony in question “would have induced the

jurors to substitute their own independent conclusions for that of the experts.” Id.

The Seventh Circuit later clarified in United States v. Brown, that Thompson

should not be understood to categorically prohibit all evidence related to policies

and procedures. 871 F.3d 532, 537 (7th Cir. 2017). “Even though jurors can

understand the concept of reasonableness, in some cases they may not fully grasp

particular techniques or equipment used by police officers in the field.” Id. In cases

where expert testimony can “help the trier of fact to understand the evidence or to

determine a fact in issue,” this type of testimony may be permissible under Fed. R.

Evid. 702. Id. The Seventh Circuit explained further:

The level of factual complexity in the case may also bear on the

relevance of expert testimony about police practices or protocols. In

many cases evaluating an officer’s conduct will draw primarily on the

jury’s collective common sense. The everyday experience of lay jurors

fully equips them to answer the reasonableness question when a case

involves facts that people of common understanding can easily

comprehend. The jury’s common experience will suffice, for example,

when police use their bare hands in making an arrest, the most

primitive form of force. But when “something peculiar about law

enforcement (e.g., the tools they use or the circumstances they face)

informs the issues to be decided by the finder of fact, a juror’s everyday

experience may not be enough to effectively assess reasonableness. If a

case involves “a gun, a slapjack, mace, or some other tool, the jury may

start to ask itself: what is mace? what is an officer’s training on using a

gun? how much damage can a slapjack do?

Id. at 538 (internal quotations and citations omitted). This case does not involve

police procedures or protocols, but the holdings in Thompson and Brown are

sufficiently analogous for the Court to find them controlling.

The parties agree that jail officials housed Plaintiff in Lower N, an area of

the jail “used for inmates who must be separated from other inmates for

disciplinary, administrative, or protective custody reasons.” (Doc. 71 at 3). Expert

testimony is not required for jurors to appreciate the fact that detainees may

sometimes need to be housed separately from others and that the jail has dedicated

an area for that purpose. The reasons for this type of confinement (violation of a

rule, poses a safety threat to self or others, protective custody, and medical) are also

not beyond a juror’s common experience or comprehension.

This case does not involve the use or non-use of restraints outside of

handcuffs that may require an expert’s explanation, nor does the relevance a

detainee’s prior history may have in determining the risk of harm the detainee

presents to others. Two of Mr. Wallenstein’s findings directly contradict the law in

this circuit. Compare Findings #3 and #5, infra, with Giles v. Tobeck, 895 F.3d 510,

513-14 (7th Cir. 2018) (failure to escort inmate back to cell “did not cross the line

from negligently enabling the attack to recklessly condoning it,” and decision to

wait for backup once fight started was not unreasonable).

The Court finds that Mr. Wallenstein’s expected testimony is not likely to

assist the jurors in resolving any issues of fact and that presentation of his

testimony unnecessarily risks that the jury will decide the case on an improper

basis. Defendant’s request is granted.

PLAINTIFF’S MOTION IN LIMINE (DOC. 138)

Motion in Limine No. 1

Plaintiff seeks an order excluding: “(1) the details of Mr. Motton’s felony

convictions for murder and possession of a firearm that occurred within the past ten

years; (2) Mr. Motton’s convictions from more than ten years ago; and (3) any other

criminal conviction punishable by less than one year or charge that never resulted

in a conviction.” (Doc. 138 at 4). Plaintiff requests that the Court limit evidence of

his prior convictions to “the basic fact that he has been convicted of two felonies and

is currently serving a sentence in excess of one year in the Illinois Department of

Corrections.” Id. at 3. Defendant argues that identifying “the particular felony

charged, the date, and the disposition” should be allowed. (Doc. 140 at 2).

Evidence of criminal convictions for crimes punishable by more than one year

imprisonment or convictions for crimes involving a dishonest act or false statement

are admissible for impeachment purposes, unless the court finds that the evidence

is more prejudicial than probative or more than 10 years has passed since the date

of conviction or release from confinement. Fed. R. Evid. 403, 609(a)-(b). The parties

concede that Plaintiff’s convictions for murder and possession of a firearm are of the

types of convictions admissible under Fed. R. Evid. 609.

A court “may exclude relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403. “Evidence is unfairly prejudicial if it

appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to

punish, or otherwise may cause a jury to base its decision on something other than

the established propositions in the case.” United States v. Thompson, 359 F.3d 470,

479 (7th Cir. 2004) (internal quotation marks omitted). Factors the court should

consider include: “(1) the impeachment value of the prior crime; (2) the point in time

of the conviction and the [party’s] subsequent history; (3) the similarity between the

past crime and the charged crime; (4) the importance of the [party’s] testimony; and

(5) the centrality of the credibility issue.” United States v. Gant, 396 F.3d 906, 909

(7th Cir. 2005). (internal quotation omitted).

Plaintiff’s convictions for murder and possession of a firearm are not crimes

of dishonesty and have no relation to the facts of this case. Jones v. City of Chicago,

2017 WL 413613, at *9 (N.D. Ill., filed Jan. 31, 2017) (“Murder is not a crime that is

particularly indicative of untruthfulness.”). The video depicting the incident

removes most, if not all, question regarding the parties’ physical actions. Plaintiff

does not have personal knowledge of Defendant’s interactions with his assailant or

any event that transpired outside the area of the jail where the event took place,

and the parties do not appear to dispute facts where Plaintiff’s credibility would

play a material role in the jury’s determination.

The Court finds that testimony or evidence regarding the details of Plaintiff’s

convictions would be unfairly prejudicial in this case. Plaintiff’s request is granted.

Defendant may elicit testimony or other evidence only to the facts that Plaintiff has

been convicted of two felonies and that he is currently serving a sentence that

exceeds one year. See Byrd v. Hobart, 2022 WL 2388728, at *3 (C.D. Ill., filed Mar.

1, 2022) (limiting evidence at trial to the fact that the plaintiff had committed a

felony, without divulging the exact nature of the crime, and that the conviction

predicated his confinement in IDOC).

Motion in Limine No. 2

Plaintiff seeks an order precluding evidence related to “medical treatment,

diagnoses, or medication prescribed to Mr. Motton predating March 25, 2021, or

related to his mental health.” (Doc. 138 at 8). The fact that Plaintiff’s diagnoses and

treatment may have predated the events in question does not automatically make

them irrelevant or otherwise inadmissible. These conditions may be relevant to the

calculation of damages. Plaintiff’s request is denied.

Motion in Limine No. 3

Plaintiff seeks an order precluding “Defendant from introducing into

evidence, offering any testimony about, or referring to his prison disciplinary record

or incident reports and grievances unrelated to his request for protective custody at

Rock Island County Jail…and any unproduced records.” (Doc. 138 at 10). Defendant

states that he does not intend to admit Plaintiff’s disciplinary records or requests

about “unrelated matters such as visitation or food orders,” and, therefore, does not

object to the request as it relates to these documents. (Doc. 140 at 6).

Plaintiff’s request is granted as to Plaintiff’s disciplinary records and

requests related to visitation and food orders and denied as to any other relief

requested.

Motion in Limine No. 4

Plaintiff seeks an order precluding evidence regarding “the alleged injuries

sustained by Correctional Officer Nelson while restraining Mr. Motton” during the

incident in question. The parties agree that C/O Nelson broke his jaw during the

incident and that there exists no conclusive evidence regarding who caused this

injury.

C/O Nelson’s injury occurred after Defendant had allowed the other inmate to

enter the common area while Plaintiff was present. The fact that C/O Nelson

sustained an injury thereafter does not bear on the question of whether Defendant’s

conduct prior to that injury was objectively reasonable. Plaintiff’s request is

granted.

Motion in Limine No. 5

Plaintiff seeks to bar evidence of Defendant’s good character, “such as any

personal and professional accomplishments” to show that Defendant acted in

accordance with that character on the date in question or to prove that he did not

fail to protect Plaintiff.

The Federal Rules of Evidence prohibit character evidence for purposes of

showing that the person acted in accordance therewith. Fed. R. Civ. P. 404.

Defendant indicates that he does not oppose the request insofar as it seeks to

prohibit evidence of “commendations and awards he received a Correctional

Officer.” (Doc. 140 at 8). Plaintiff’s request as to this evidence is granted.

Defendant objects to Plaintiff’s request as it relates to “basic career and

background information,” including his service in the military. Defendant argues he

should be allowed to testify regarding his basic military duties, any promotions, and

whether he received an honorable discharge because the absence of such

information “would raise suspicion in the jury’s mind.” Id.

Brief testimony regarding an officer’s military service is generally

appropriate “to provide a complete picture to the jury of the officer’s professional

background.” Holt v. Lewsader, 2021 WL 4094996, at *14 (C.D. Ill., filed Apr. 19,

2021); Valdez v. Lowry, 2021 WL 5769533, at *15 (N.D. Ill., filed Dec. 5, 2021) (“The

military service of plaintiff (and defendant officers, for that matter) is appropriate

background evidence.”). Plaintiff’s request is denied as to any remaining relief

requested.

Motion in Limine No. 6

Plaintiff seeks an order permitting him to appear in civilian clothing without

restraints. Defendant does not object to the request as it relates to clothing, or to an

order permitting Plaintiff to appear without visible restraints. Plaintiff’s request is

granted as to the clothing and for Plaintiff to appear before the jury within visible

restraints and denied as to any other relief requested. The Court will make a final

determination regarding the extent of Plaintiff’s restraints after consultation with

security staff.

Motion in Limine No. 7

Plaintiff seeks an order directing counsel and witnesses to refer to Plaintiff

only as “Mr. Motton.” Defendants ask the Court to permit them and witnesses to

refer to Plaintiff as “plaintiff” or “Motton.” Reference to an individual as plaintiff or

defendant, or simply by a last name, is common practice. Calling Plaintiff by these

monikers, or even the occasional reference to Plaintiff as a detainee or inmate do

not appear to be unfairly prejudicial within the context of this case. Plaintiff’s

request is denied.

PROPOSED FINAL PRETRIAL ORDER (DOC. 141)

The parties submitted a joint proposed final pretrial order on November 12,

2025. (Doc. 141). At the final pretrial conference held November 17, 2025,

Defendant indicated that the proposed order did not reflect his intention to waive

authentication for certain exhibits. Plaintiff indicated that, in light of Defendant’s

waiver, he does not intend to call a custodian of records as a witness to authenticate

the documents in question.

The Court also discussed with the parties an objection pursuant to Rule 26(a)

that Plaintiff had indicated in the proposed final pretrial order to testimony from

Brett Josie and Melissa Fletcher. Plaintiff’s counsel stated at the final pretrial

conference that he would withdraw his objection as to Melissa Fletcher.

Plaintiff stated that he had disclosed Brett Josie in his supplemental Rule 26

disclosures after the Court had reopened discovery. He stated that because

Defendant did not disclose Mr. Josie as a witness that he made a “strategic

decision” not to depose this witness. Plaintiff asserts that he accordingly does not

know to what Mr. Josie will testify, and, therefore, permitting Defendant to call this

witness is prejudicial.

Rule 26 requires a party to disclose the name of every individual “likely to

have discoverable information…that [the party] may use to support its claims or

defenses,” and to identify “the subjects of that information.” Fed. R. Civ. P.

26(a)(1)(A)(i). Parties have an ongoing duty to supplement these disclosures “in a

timely manner” if the party learns new information or discovers that previous

disclosure is somehow deficient and “if the additional or corrective information has

not otherwise been made known to the other parties during the discovery process or

in writing.” Fed. R. Civ. P. 26(e)(1)(A).

A party that fails to comply with these disclosure requirements “is not

allowed to use that information or witness to supply evidence…at trial, unless the

failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Exclusion

is “automatic and mandatory” unless the noncomplying party can show its violation

was either justified or harmless. David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th

Cir. 2003).

The parties do not appear to dispute that Defendant failed to disclose Mr.

Josie as a witness, and that that failure affected Plaintiff’s litigation strategy. The

question before the Court hinges on whether Plaintiff’s disclosure and Mr. Josie’s

presumed inclusion in discovery documents relieved Defendant of his duty to

disclose him under the “otherwise been made known” exception in Fed. R. Civ. P.

26(e)(1)(A), and, if not, whether the failure to disclose was justified or harmless. The

Court will provide the parties an opportunity to submit argument or authority on

the issue as they deem necessary.

CONCLUSION

The parties’ respective motions in limine (Docs. 137, 138) are granted in part

and denied in part. The parties shall submit a revised proposed final pretrial order

to reflect the changes discussed at the final pretrial conference and any argument or

authority on the witness issue as directed below.

THEREFORE:

1) The parties’ respective motions in limine [137][138] are GRANTED in

part and DENIED in part.

2) The parties shall submit a revised proposed final pretrial order by

December 1, 2025.

3) The parties shall submit any argument or authority on the issue of

whether Brett Josie should be permitted to testify by December 1,

2025.

SO ORDERED.

Entered this 20th day of November, 2025.

s/Ronald L. Hanna

Ronald L. Hanna

United States Magistrate Judge