SHANNON M. PETERS, Plaintiff,
MICHELLE RISDAL, LEE BLANCHARD, JONATHON HATFIELD, and CARLOS LUCERO, Individually and as Deputy Sheriffs/Jailers of Woodbury County, Iowa, Defendants.
MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES' MOTIONS IN LIMINE
MARK W. BENNETT, District Judge.
In this action pursuant to 42 U.S.C. § 1983, plaintiff Shannon Peters, a female arrestee, asserted claims of various constitutional violations against the County, the former County Sheriff, and various jail officers (the Defendant Officers) arising from her treatment during her booking for a misdemeanor violation of a no contact order on May 27, 2012. In my October 25, 2013, Memorandum Opinion And Order Regarding Plaintiff's Motion To Exclude Expert Testimony And Report Of Donald Leach, II, And Defendants' Motions For Summary Judgment (docket no. 62), I granted summary judgment in favor of the County and the former County Sheriff on all claims, granted summary judgment in favor of the Defendant Officers on Peters's "violation of privacy rights/strip search" claim, and concluded that this case will proceed to trial only on Peters's claims of "excessive force" and "free speech retaliation, " and only against the Defendant Officers. I also explained that, on the record presented here, Peters can prevail on her "free speech retaliation" claim only if she first prevails on her "excessive force" claim. See Peters v. Woodbury Cnty., Iowa, ___ F.Supp.2d ___, 2013 WL 5775027, *65 (N.D. Iowa Oct. 25, 2013).
Trial in this matter is set to begin on December 16, 2013. In anticipation of trial, the parties have filed motions in limine. The first motion now before me is Peters's November 6, 2013, Supplemental Motion In Limine (docket no. 65), seeking the exclusion of two categories of evidence. The Defendant Officers filed a Resistance (docket no. 70) to that Supplemental Motion on November 13, 2013. The second motion now before me is the Defendant Officers' November 6, 2013, Omnibus Motions In Limine (Omnibus Motion) (docket no. 67), seeking the exclusion of nineteen categories of evidence, mostly on the grounds that the evidence was no longer relevant in light of my summary judgment ruling. Peters filed a Resistance (docket no. 73) to that Omnibus Motion on November 20, 2013, and the Defendant Officers filed a Reply (docket no. 77) in further support of their Omnibus Motion on November 27, 2013. I will consider these motions in turn. First, however, I will summarize the standards for admissibility of evidence based on relevance and the balance of probative value versus prejudice, as the parties' evidentiary challenges rely primarily on these standards.
II. LEGAL ANALYSIS
A. Relevance And Prejudice Standards For Admissibility
1. Rules 401, 402, and 403
Rule 401 of the Federal Rules of Evidence defines relevant evidence as evidence that "(a)... has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Rule 402 provides that relevant evidence is generally admissible, but irrelevant evidence is not. Rule 403 provides for exclusion of even relevant evidence on various grounds, as follows:
The 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. "Under Rule 403, district courts have broad discretion to assess unfair prejudice, and are reversed only for an abuse of discretion." United States v. Myers, 503 F.3d 676, 681 (8th Cir. 2007) (citing United States v. Henderson, 416 F.3d 686, 693 (8th Cir. 2005), cert. denied, 546 U.S. 1175 , 126 S.Ct. 1343, 164 L.Ed.2d 57 (2006)); accord United States v. Muhlenbruch, 634 F.3d 987, 1001 (8th Cir. 2011) ("We review the district court's decision not to exclude evidence under Rule 403 for an abuse of discretion.").
More specifically, as to Rule 403, the Eighth Circuit Court of Appeals has explained,
[U]nder Rule 403, the [challenged evidence's] probative value must be substantially outweighed by unfair prejudice. "Evidence is not unfairly prejudicial because it tends to prove guilt, but because it tends to encourage the jury to find guilt from improper reasoning. Whether there was unfair prejudice depends on whether there was an undue tendency to suggest decision on an improper basis." United States v. Farrington, 499 F.3d 854, 859 (8th Cir. 2007) (quotations omitted).
Muhlenbruch, 634 F.3d at 1001 (emphasis in the original); Myers, 503 F.3d at 681 ("Rule 403 does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party's case. The rule protects against evidence that is unfairly prejudicial, that is, if it tends to suggest decision on an improper basis.'" (quoting Wade v. Haynes, 663 F.2d 778, 783 (8th Cir. 1981), aff'd sub nom. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)). The Advisory Committee Notes to Rule 403 explain that a decision on an "improper basis" is "commonly, though not necessarily, an emotional one." FED. R. EVID. 403, Advisory Committee Notes; see also United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir. 2007) (quoting this note); United States v. Dierling, 131 F.3d 722, 730-31 (8th Cir. 1997) (considering whether evidence was unfairly prejudicial, because it might lead to a decision on an improper basis, where it purportedly had no connection to the charged offense and revealed grisly or violent behavior that made the defendant appear "dangerous"). Unfairly prejudicial evidence, inviting a decision on an improper basis, has also been described as evidence that is "so inflammatory on [its] face as to divert the jury's attention from the material issues in the trial.'" United States v. Adams, 401 F.3d 886, 900 (8th Cir. 2005) (quoting United States v. Shoffner, 71 F.3d 1429, 1433 (8th Cir. 1995)).
Where evidence may otherwise be inadmissible pursuant to Rule 403, the Eighth Circuit Court of Appeals and the Federal Rules of Evidence recognize that a limiting instruction on the proper uses of certain evidence may mitigate potential prejudice from such evidence and allow it to be admitted. See, e.g., United States v. Cowling, 648 F.3d 690, 699 (8th Cir. 2011) ("Moreover, the risk of unfair prejudice was reduced by a cautionary instruction to the jury, given when the evidence was first admitted."); United States v. Young, 644 F.3d 757, 761 (8th Cir. 2011) (concluding that the district court did not abuse its discretion in admitting evidence for the limited purpose set forth in its instruction); United States v. Walker, 470 F.3d 1271, 1275 (8th Cir. 2006) ("[A] limiting instruction [concerning proper use of evidence of a prior conviction] diminishes the danger of unfair prejudice arising from the admission of the evidence."); see also FED. R. EVID. 105 (requiring a limiting instruction when the court admits evidence for a limited purpose). The court has also recognized that limiting the amount of evidence, while excluding evidence that might prejudicially divert the jury's attention from the issues in the case, also mitigates any potential for unfair prejudice. See United States v. Lemon, 239 F.3d 968, 972 (8th Cir. 2001) (holding that, where the district court admitted a limited amount of gang-related evidence that was relevant to the defendant's "mere presence" defense, but excluded evidence of his drive-by shooting conviction, which might have prejudicially diverted the jury's attention from the constructive possession issues central to the case, the district court had not abused its discretion in admitting the limited gang-related evidence).
2. The effect of the summary judgment ruling on evidence admissible at trial
Here, the Defendant Officers challenge several categories of evidence on the ground that they are irrelevant or that their probative value is outweighed by their potential for unfair prejudice, in light of my summary judgment ruling. I find that the effect of the summary judgment ruling on the evidence admissible at trial depends on whether the evidence is offered to dispute claims and issues that were decided as a matter of law or to dispute facts deemed admitted by Peters's failure to respond properly to the Defendant Officers' Statement of Undisputed Facts.
a. Evidence intended to dispute issues or claims decided as a matter of law
I have considered the admissibility at trial of evidence intended to dispute issues on which I have previously ruled as a matter of law at summary judgment in a case involving an insured's claim of first-party bad faith denial of workers compensation benefits and the insurer's assertion that the claim was "fairly debatable." See Niver v. Travelers Indem. Co. of Ill., 433 F.Supp.2d 968, 997 (N.D. Iowa 2006) ( Niver II ). Specifically, in a ruling on the parties' cross-motions for summary judgment, Niver v. Travelers Indem. Co. of Ill., 412 F.Supp.2d 966 (N.D. Iowa 2006) ( Niver I ), I noted that the defendant insurance company had "not properly disputed any factual statements in the plaintiff's Statement of Undisputed Material Facts In Support [Of] Plaintiff's Motion For Summary Judgment And Resistance To Defendant's Second Amended And Substituted Motion For Summary Judgment (docket no. 164-4), because the defendant's Response (docket no. 168-2) cites no portion of the record in support of any denials or qualifications as required by [then] N.D. IA. L.R. 56.1(b)." Niver I, 412 F.Supp.2d at 968 n.1. As to disputed facts, I concluded as follows:
[T]he defendant's "failure to respond, with appropriate citations to the appendix, to an individual statement of material fact constitutes an admission of that fact." N.D. IA. L.R. 56.1(b). Notwithstanding the authorization of the local rule to deem admitted all factual statements to which no proper response has been made, the court has, in an abundance of caution, perused the record with care to determine what facts are genuinely disputed between the parties and whether those factual disputes are material to the cross-motions for summary judgment on the merits of the plaintiff's bad faith claim.
Niver I, 412 F.Supp.2d at 968 n.1. Thus, in Niver I, I did not simply deem facts admitted by the insurer's failure to respond properly to the insured's factual statements, but considered whether the record demonstrated genuine issues of material fact. I ultimately granted summary judgment in favor of the insured to the effect that the insurer could not "fairly debate" the insured's claim for workers compensation benefits, but left the question of damages for a subsequent jury trial. Id. at 993-94.
In Niver II, a subsequent ruling on motions in limine prior to the jury trial on damages, I discussed the impact of my prior disposition of issues on summary judgment, as follows:
Again, Travelers is simply wrong about what issues can be presented to the jury. It is too late for Travelers to argue to the jury, based on any evidence acquired ever, that Niver's claim was fairly debatable, because the court has already ruled that, as a matter of law, Travelers could not reasonably debate, and knew that it could not reasonably debate, Niver's claim during and after July 2001. If Travelers ever had information acquired after October 11, 2002, showing a basis for fairly debating Niver's claim, Travelers has either failed to present any such information or has failed to convince the court that such information demonstrated that Niver's claim was fairly debatable during and after July 2001. Travelers cannot pretend that such information exists, never having disclosed it as required by the rules of discovery and never having previously relied upon it in these or any other proceedings, to attempt to reopen an issue that the court has decided as a matter of law on a summary judgment record that the parties represented to be complete. Also, Travelers has not previously represented, and is not now representing, that Niver's claim was fraudulent, based on evidence of fraud obtained only after the workers compensation proceedings had terminated. To allow Travelers to rely at trial on some "secret" evidence purportedly acquired after October 11, 2002, which Travelers even now has not identified, would be unfairly prejudicial to an extent that outweighs any marginal relevance that evidence might have to the questions actually at issue at trial. See Fed.R.Evid. 403 (relevant evidence may be excluded if its probative value is outweighed by its potential for unfair prejudice).
Niver II, 433 F.Supp.2d at 997 (emphasis added). For this reason, I granted the insured's motion to exclude any evidence acquired by the insurer after the date of the workers compensation arbitration held on October 11, 2002. Id. at 998. Thus, Niver II teaches that it is proper to exclude evidence that is offered to dispute a claim or defense or a legal issue that has already been determined as a matter of law at summary judgment, pursuant to Rule 403, but neither Niver I nor Niver II teaches that a court is required to bind a party at trial to certain facts that were deemed admitted at summary judgment by failure of a party to dispute them properly.
I also find the decision of the Eighth Circuit Court of Appeals in Blair v. Wills, 420 F.3d 823 (8th Cir. 2005), to be instructive here on the admissibility of evidence that relates to dismissed claims at the trial of remaining claims, although Blair is not a Rule 403 case. In Blair, the court considered whether the district court had improperly denied the defendants' motion for new trial, which had been based on the plaintiff's counsel's repeated introduction of evidence concerning alleged misconduct of the defendants that was irrelevant to the plaintiff's remaining claims. Blair, 420 F.3d at 830. The appellate court observed,
Although the District Court repeatedly reminded Blair's counsel to focus on the claims remaining in the case - the FLSA and battery claims - and to refrain from injecting irrelevant and prejudicial evidence into the proceeding, these admonitions were unsuccessful. Unfortunately, the ongoing introduction of irrelevant information, the repeated objections by Appellees, and the frequent warnings and admonitions by the District Court likely gave jurors the impression that something more happened than they were being told. When the case is a close one, the possibility that improper conduct could have influenced the jury's verdict is increased. Silbergleit [v. First Interstate Bank of Fargo], 37 F.3d [394, ] 398 [(8th Cir.1994)]. The fact that the jury awarded Blair $20, 000 on relatively weak evidence of battery supports our conclusion that Gerhardt was prejudiced by the misconduct of Blair's counsel.
The line of questions posed by Blair's counsel over the course of the two-and-a-half-day trial emphasized irrelevant information having no bearing on the issues remaining in the case and demonstrated a persistent effort by Blair's counsel to get this information before the jury, despite repeated admonitions by the District Court. Although the District Court made a valiant attempt to rein in Blair's attorney, the improper and prejudicial questioning continued. We believe that the combined effect of these questions was to present to the jury an abundance of irrelevant evidence that had no bearing on the merits of the remaining claims and served only to prejudice the jury against Gerhardt. Consequently, we conclude that the District Court abused its discretion by denying Gerhardt's motion for a new trial on Blair's battery claim.
Blair, 420 F.3d at 830 (emphasis added). The decision in Blair suggests that a trial court must be vigilant to exclude evidence that relates to dismissed claims or misconduct of a party that is irrelevant or only marginally relevant to remaining claims, because of the prejudicial effect of such evidence. See also Lamb Eng'g & Constr. Co. v. Nebraska Pub. Power Dist., 103 F.3d 1422, 1432-33 (8th Cir. 1997) (holding that evidence that was relevant only to a voluntarily withdrawn breach-of-contract claim should not have been admitted to determine damages owed under a termination clause, and noting that the error in admitting such evidence "caused, or contributed to, a prejudicial conclusion" by the jury); Dethmers Mfg. Co., Inc. v. Automatic Equip. Mfg. Co., 73 F.Supp.2d 997, 10002-03 (N.D. Iowa 1999) (concluding that evidence that was only marginally relevant to remaining claims should be excluded pursuant to Rule 403, on the ground that it could confuse the issues for the jury).
I conclude that evidence may not be offered to dispute claims or issues that I have determined as a matter of law at summary judgment.
b. Evidence offered to dispute facts deemed admitted
The cases discussed above do not answer the question of the binding or non-binding effect at trial of facts deemed admitted at summary judgment by a party's failure to respond properly to an opposing party's factual allegations. Local Rule 56(b) states, "The failure to respond, with appropriate citations to the appendix, to an individual statement of material fact constitutes an admission of that fact." N.D. IA. L.R. 56(b). It does not make clear, however, whether that "admission" is only for summary judgment purposes or is also binding at a subsequent jury trial on remaining claims or defenses. The Defendant Officers cite Tobey v. Extel/JWP, Inc., 985 F.2d 330, 333 (7th Cir. 1993), for the proposition that "[a]n admission trumps evidence, rather than vice versa, " including admission by failure to contest a party's statement of uncontested facts, but that statement is in the context of evidence on which a court may rely at summary judgment, not in the context of what evidence can be considered at trial. Id. Some district courts have held that facts expressly admitted at summary judgment are binding at trial, but others have not. Compare Seid v. Reeves, No. 8:05CV207, 2006 WL 695455, *1 (D. Neb. March 17, 2006) (unpubl. op.) (Kopf, J.); with Americans United for Separation of Church and State v. Prison Fellowship Ministries, 395 F.Supp.2d 805, 808-09 (S.D. Iowa 2005) (Pratt, J.) (holding, on a motion to deem all admissions in response to a statement of material facts at summary judgment to be binding at trial, that a stipulation of facts for trial was a "judicial admission, " binding at trial, but "any other admission" was an "evidentiary admission, " subject to rebuttal or explanation at trial by the party against whom it is offered, but "should not be lightly discarded, " unless clearly made as a mere concession for the sake of argument). It is even less clear whether facts deemed admitted at summary judgment by a party's failure to respond or to respond properly should be binding at trial.
I note that Rule 36 provides for deeming certain facts stated in a discovery request for admissions to be admitted, if the party to whom the request is submitted either fails to respond, FED. R. CIV. P. 36(a)(3), or the court determines that an answer does not comply with the requirements of the rule (in subsection (a)(4)), FED. R. CIV. P. 36(a)(6). Furthermore, Rule 36(b) states,
(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.
FED. R. CIV. P. 36(b). The advisory committee notes to the 1970 amendments to Rule 36 explain that subdivision (b) had not previously "indicate[d] the extent to which a party is bound by his admission, " but
The new provisions give an admission a conclusively binding effect, for purposes only of the pending action, unless the admission is withdrawn or amended. In form and substance a Rule 36 admission is comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial, rather than to an evidentiary admission of a party. Unless the party securing an admission can depend on its binding effect, he cannot safely avoid the expense of preparing to prove the very matters on which he has secured the admission, and the purpose of the rule is defeated.
FED. R. CIV. P. 36, advisory committee notes to 1970 amendments (emphasis added). Thus, a fact deemed admitted pursuant to Rule 36(b) is binding "for purposes... of the pending action, " which includes trial, and the party against whom the fact is deemed admitted must seek leave to withdraw or amend the admission. See, e.g., McNeil v. AT & T Universal Card, 192 F.R.D. 492, 494 & n.4 (E.D. Penn. 2000) (holding that matters deemed admitted by failure to respond to requests for admissions were binding on summary judgment and at trial).
A party can have little doubt that facts deemed admitted by failure to respond to a request for admissions will be binding at trial, see FED. R. CIV. P. 36(b), that is, that facts deemed admitted by failure to respond to a request for admissions are "judicial admissions." On the other hand, I agree with Judge Pratt's determination, in Americans United for Separation of Church and State, 395 F.Supp.2d at 808-09, that facts admitted at summary judgment, expressly or by failure to respond to an opposing party's statement of undisputed facts, are "evidentiary admissions" that should not be lightly disregarded, but, nevertheless, should, be subject to rebuttal or explanation at trial by the party against whom they are offered.
I also find it instructive that a party may not offer an affidavit in resistance to summary judgment that contradicts or is inconsistent with prior deposition testimony, but may elaborate on matters addressed in a prior deposition, see, e.g., Popoalii v. Correctional Med. Servs., 512 F.3d 488, 498 (8th Cir. 2008), and a party may be impeached at trial with evidence of a prior inconsistent statement, made under oath and subject to cross-examination, including a statement that is evasive or a change of position, see, e.g., United States v. Matlock, 109 F.3d 1313, 1319 (8th Cir. 1997) (citing Rule 801(d)(1)(A)). Therefore, I believe that any attempt to dispute facts admitted at summary judgment, whether expressly or by failure to respond properly to an opposing party's statement of undisputed facts, should be open to rebuttal ...